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tv   Landmark Cases Griswold v. Connecticut  CSPAN  April 3, 2018 12:00am-1:32am EDT

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from you and we will hear kevin next. thank you. >> coming up on our landmark case series, we look back at the griswold v. connecticut case. it challenged a law that criminalized the use of birth control next on c-span. former diplomats are a part of a panel discussion looking at the role of russia, iran, turkey and israel and the syrian conflict. that is from the wilson center. ♪ businesss having before the supreme court, we want their attention. >> landmark cases, produced in partnership with the national constitution center.
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exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. itmr. chief justice and make please the court. >> quite often in many of our most famous decisions are ones that the court took on to fight the unpopular. >> let's go through a few cases which illustrate what it means to live in a society of different people who help stick together because they believe in a rule of law. >> good evening, tonight's landmark case is the 1965 griswold v. connecticut. to give you a sense of his continuing importance in our society, we put together a short
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video of the griswold case. let's watch. >> griswold v. connecticut, which recognizes the right to privacy and the constitution. >> i believe marital privacy extends to contraception. >> griswold v. connecticut. >> back in the 60's, there was a case known as griswold v. connecticut. >> what's talked a little bit about griswold. >> what is it about griswold v. connecticut that gives the importance? we will learn about its history. a professor from george mason and her latest is putting children's interests first.
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and a researcher from temple university. why is griswold so important? >> it was a landmark case decided in 1965. it is a landmark case now because it set the path for cases deciding abortion-rights, sexuality, sexual expression, same-sex marriage. it is a warning to state about how to use the criminal justice system and police people. >> what are your thoughts about the landmark case? >> it is a declaration of a
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right of privacy and all the discussion of -- is it safe for judges to be defining rights that are fundamental and not in the text of the constitution? how far do we go? and it set the path as rachel said for the decisions on sexual expression based on privacy. >> is there a conservative consensus about griswold? >> no. i would say parents deciding about kids education, a lot of conservatives would stay -- some would say it is always dangerous when justices discover a right that is not in the constitution. how far will they go? >> is there a liberal view?
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>> the right to contraceptive use and over the years, that agenda has been more closely associated with the women's rights movement and with feminism and politics in the workplace. >> is that a consensus? >> i don't think so. but they would come up with those reasons. >> there was an interesting cast of characters. estelle griswold has interest in -- castillo griswold is a woman who has an interest in the availability of contraception. she was married to someone in the state department and has
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done some international work. she decides connecticut's law is old-fashioned in the study done away with in sheet decides to form a clinic and file a the law and get before court and get it looked at once and for all. >> we are also going to meet in doctor.eet a who is he? >> he was the chair of the ob/gyn department. the only medical school that was decided and he came up with the strategy that would become griswold v. connecticut to strike down the ban on contraceptive use. he had a personal responsibility to patients he saw suffering. pregnancy complications that could not act as legal contraceptives. >> there is a female lawyer. who is she?
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>> she is a real figure in history. she was the only woman in her class that graduated law school. she was associated with a number of significant lawsuits, including not only this case, which she worked on through the supreme court. she was later associated with the defense of the black panthers. she felt very strong about women's rights and access to contraception. >> our last cast of characters, is thomas emerson. >> he argued the case for the supreme court. one of the original engineers when professor harper fell sick. >> you are talking before the program started about the young -- the yale connection.
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how many aspects intersect with with yale. if it a coincidence. >> yale has been a preeminent law school for a great deal of time and probably, you could say known at this time for being unafraid. it is indeed controversial. you have griswold married to someone from jail. -- from yale. she had family who went to yale, so quite a few links. >> also, apparently estelle griswold would have a mean martini and it was during a cocktail party that one of the strategies came.
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>> this was referred to a comstock law. >> it was passed in 1873. it is named after anthony comstock. at some point, he famously bragged he confiscated 160,000 pounds of books, 95,000 articles -- the comstock law makes it a crime to mail contraceptives to, information about them more information on how to find out about contraceptives. that is the comstock law.
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>> this is 1873. we are talking about a case from 1961. were comstock laws on the books by a lot of states at this point ? >> about 24 states. some states came in later. connecticut goes on the book in 1879. fascinatingly, the state representative pt barnum. by the time the case comes around, really only connecticut and massachusetts have these laws on the books. connecticut's law is concerned with people who use them and concern with people who ate in -- who aid and abet them. >> in about 10 minutes, we will go to your phone calls.
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we look forward to your comments. if you live in the eastern or central time zone. you can also send us a tweet. there is a session underway on c-span's facebook page. you can join the conversation there. griswold v. connecticut establish the right to privacy. some of the text of the connecticut law read this way. any person who uses any drug for the purpose of preventing contraception's shall be not find less than $50 or imprisoned , not less than 60 days nor more than one year or be fined and imprisoned. by 1960, how often was this law enforced? >> it is hard to arrest someone
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for the use of contraceptives, so that is where part of the statute is really important. large,awrence, -- by and people were not getting arrested. spermicide was available for the purpose of disease prevention. as long as you sold a contraceptive device for other than contraceptive reasons, it was legal. of course, that is not included the diaphragm. those are still hard to come back. -- come by. were people getting executed? in 1940, a clinic was rated -- raided. they went before the connecticut supreme court and lost. they said there -- they said the doctors have been told that
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writing prescriptions would be an exception based on other cases in other states. the supreme court held that was not the case and there were no exemptions. >> there were federal efforts to overturn connecticut's efforts. >> 1961 close to our mr cases, what was happening? >> it was the doctor trying to argue. in 1961, they wanted to clarify judgment that the law could be used against them. nobody has been arrested or
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convicted, and so it is just the right. if you look, you have yourself a griswold in miniature. you can track so much of the language that said that it is right. >> we have a regular viewer of our series that writes that the penal aspect -- aspects of the comstock laws are rather ironic insofar as a stint in prison is another way to prevent contraception. we get to 1961, here's a headline in the new york times. there were people and what was the role of planned parenthood?
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>> planned parenthood had recruited the three patients that would become the petitioners led by dr. buxton's. she was instrumental in signing the patient's and deciding on the strategy. planned parenthood was instrumental in figuring out that once -- once the supreme court dismissed because of lack of prosecution, it was planned parenthood that was the engineer to set up a clinic so the medical director could get arrested to test the connecticut law. >> planned parenthood was operating around the state this point? >> griswold had set up a planned parenthood there. i think there have been others
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in the area. >> they had a number of clinics operating throughout the state and indicates that i mentioned, state versus nelson, they all closed after that case and they started setting up clinics for educational purposes. the new haven clinic is the clinic that started prescribing contraceptives. before that, other clinics were just doing educational services that were not banned by the law. planned parenthood was key in helping women get across straight -- state lines. they could get contraception's legally red >> we have video from the 1960's
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the -- 1962 report by cbs. you'll see in their own words describe how they put this together. >> how did you become involved in this case? >> i'm interested in taking care of patients and when i'm prevented from taking care of patients by a law that exists, i believe that something ought to be done by.
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the woman can afford to go to a private doctor as a private patient, she can get contraceptive advice in connecticut, but if she hasn't money to go to a private doctor, she cannot get contraceptive advice here because you're not allowed to have a family planning clinic. they are really the ones that need the advice from a social economic and health point point of view and they are being discriminated against because of their economic status. >> as you said, people that can afford can go to a private physician. how many people would you say are breaking the law? >> to do has one of the lowest birth rates. he can't tell me they are carrying out purely catholic ideas. this is the still griswold. griswold. -- >> we are continuing, maybe legally, but we are continuing
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our program of education. many women calling for -- call in for information on where they can get help and for the past four years, we have been -- we have been subsidizing these centers financially for quite some time. i would say that we've had approximately 20,000 women go out the last four years. >> both of them making the economic argument. what is your reaction to that? >> over the years, the poor and minority women asked the question and so when he said these are the people that really need it. even today, there is a question as to whether some poor and minority women feel like people that are better off want them to have it. you have the president saying we
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need to contraceptive the third world. the economic argument makes a lot of sense. they say people cannot afford children, but it also has a bit of a backlash. >> i think there is a complicated story. it has made a centerpiece other advocacy. how certain projects really targeted women of color and at the time, they are not just repealing, they are surpassing
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laws creating programs to provide family planning. there is a population movement happening. that said, i think it is fascinating that one of the understudied parts is the clinic saw itself as providing economic justice for its clients. there was a public clinic and the message about curtailing poverty and properties effects -- poverty's affects on reproductive choices is an important one that even with its darker side is something to think more about. >> going to pause and take some calls. first is peter from pennsylvania. >> thank you.
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i can't believe my good fortune to speak to you. this case really fascinates me and for a long time, i thought it was a case about reproductive choice and reproductive freedom. i have since learned it centers on privacy. this really confounds me because here we are over 50 years later and i'm like where's my right to privacy? why has this not been extended? i'm pretty sure that if i grew certain plants in my home, especially cannabis for my own use, i could get in trouble. i could set up a device to make my own whiskey. i'm sure i could get in trouble for that. as far as i know, i might get in trouble for tobacco.
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please, why has griswold v. connecticut not been used to expand everyone's privacy right s and put them into a insane war on drugs? >> i think one answer is the right to privacy articulated in griswold, the court to find that right to privacy to personal relationships in many ways and here i'm talking about a trajectory of 1965 to 2018. a lot of what you are describing
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has said implicated business affairs. you may not be satisfied with this answer, but the court has made that distinction. privacy has its limits. >> josh is up next. >> how consequential was william douglass not just in this case, but the supreme court? >> i think it is being consequential has a lot to do with this case because he articulated a right to privacy. was not in the text of the constitution and indicated an opinion on behalf of living constitutionalism. when i went back and read his case, reread his opinion in griswold, i was struck about a
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living constitution are still in today. i would defer to others as later cases that he was a part of because i do not know them quite as well. >> any comments? >> justice douglas's opinion, i think he was significant on the court. it has been criticized in ridiculed. i think it has been much kinder and his opinion as saying something important about poor privacy rights. >> next up is julia from palo alto. >> hi. you talked about the foundational role of recognizing
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a right to privacy. some have opined that the right to an abortion might be more appropriate way a privacy -- the same could be said about the ability to become pregnant. can you hypothesize as to the legal implications in the policy issues? >> i think had it been done under equal protection and the lawrence case, had the same-sex marriage case been done, she is not alone in thinking and part
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of that is the fight over how you look at a constitution and find a non-textual right, that fight is so hot, but the question about equal protection is slightly less hot i think that lawrence and the letter may test the later case might have seen to have a farmer foundation. the statement of articulated its interest -- the state would have articulated its interest against the unequal allocation against rights and it would have been harder for the state to do so. >> you said earlier that the earlier case needed, so we will learn that part of the story.
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we will listen to dr. buxton. >> i was the witness against the doctors. i got involved through the yellow law school test the yale law school -- the yale law school. and it seemed at the time it is difficult to find a witness. a married woman whose husband did not object and could stand up and give evidence. i was examined in given further advice. >> we had gone directly to the clinic and the police station. >> yes, i did go to the clinic
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and see dr. buckson. we accepted advice, but did not actually use it. the police sent us a way to come back tomorrow and say that this had also been used. >> there's another aspect, even though the folks in connecticut were planning for this, did not pounce on. again, this news report about a neighbor who got involved and we will learn about his role in setting the wheels in motion. >> i'm 100% against birth control because it is immoral. it is the same as prostitution, abortion or any of those other immoral things. >> when rock 'n roll came to new
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haven, the mayor of new haven them out of town. everybody in this part of mississippi was thrown out of town because he was against hurting children. when birth control came to the town, what that the mayor do? he said, that is not my department. call the police department. the police department says, call -- i will call the prosecutor. prosecute says we are not accepting your claim. i had to finally go to the press, to the radio and everybody else. i was finally allowed to file a complaint with the chief of police. just an ordinary citizen with five children who was never elected to office. i had to go to chief of police and file a complaint. >> what do you think of mr. morrison's role? >> i always like to make sure we do not judge people from the past by our same standards. he was not alone in this. the attorney for connecticut was
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making similar arguments about morality. i want to say it is the anglican or the episcopal church, only 30 years before a declared contraception ok and for married couples. this was a very different time and things were changing drastically. as rachel points out, the invention of the pill and all else that was going on in the 1960's. a lot of people were frightened of the changes. he was not alone. >> connecticut found itself in court over this case. what happened? >> they lost. planned parenthood lost in state courts. before the supreme court in connecticut. the connecticut supreme court refused to reconsider arguments.
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they said that the law was not unreasonable or arbitrary. it was a proper exercise of the state. planned parenthood appeals to the u.s. supreme court. >> katie was an important part of the process. can you talk about what her role was? >> she was the main attorney in the courts in connecticut. she filed very forceful arguments. at the uplink, introducing the idea that this was a violation of people's rights of privacy. previously, the arguments were more about this is a threat to people's life if they do not use contraception. she is now introducing the idea that people have rights that may not be articulated in the constitution but they are important for personal freedom. >> martha is a professor at him or a law school. -- emery law school.
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there is a terrific archive of her professional work at emory law. i had to put in that plug because it is a wonderful resource. >> the new york times, january 18, 19 63, had the headline, too loose appeal on birth control. the proponents of the repeals decided to try again legislatively. it went to the connecticut legislator, the house appealing the law in 1963. what happened in the senate? >> it loses in the senate. it was a very catholic senate and they did not believe in it. that is a very interesting conversation by itself. one of the things i noticed is when you look at the earlier case, one of justice douglas's statements is, do not worry about the catholics on this.
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he says, there are plenty of catholics that understand this is a private, moral thing and they do not think you need to have a law that goes into people's bedrooms. there was a dispute among catholics and ended up showing up in the connecticut senate, which refused the past the law -- refused to pass the law. others thought the law should reflect a moral opinion. >> on twitter, he asks not so much about catholics but how the catholic church responds. do they respond in a forward way? >> if you go look at catholic literature at the time, you see john courtney murray, some people may have heard of him. he is a very famous catholic theologian. he is responsible for the vatican documents that said freedom for everyone is a good
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thing. he writes and douglas quotes him. he quotes his catholic guy in his dissent in tow and says, kurt me -- courtney murray understands the difference between something that is privately a moral matter but should not be enforced by the law. this is not a law that anyone should support. other catholics. that the law should uphold a standard of morality. people are more likely to be promiscuous. they separated the idea of babies and sex and we should hold the line in connecticut. >> next up is john in fort wayne, indiana. caller: full disclosure, i am a retired attorney and i remember we learned about this case in constitutional law back in 1976. i always remember the numbers. it was a short opinion that came up with this right of privacy no
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where in the constitution. i don't think anybody should disagree with a dumb law, it never should have been passed. we look back today and i can't imagine any state would have such a law. but for nine on the leg to judges to decide that there is this right of privacy, which means that we have to declare this law unconstitutional -- the real argument should of been to the legislator. they are the ones that should argue get rid of the law. it still baffles me that mine of those elected judges can use this to find some right of privacy no in the constitution. >> we will let that stand as a comment and go on to jeremy, washington, d.c. >> good evening, huge fan of the program. my question relates to the piece that you had from pbs and where dr. buxton talks about the economic inequality affects that the law had.
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you and your guests talk about how women who have means to see a private doctor would not be affected by this law. it is interesting that the law would equally apply to private as well as the public clinic. i am wondering what the basic of the statement was? >> i think dr. -- dr. buxton was referring to the illegal practice of private physicians writing prescriptions for women, or providing women with contraceptive under the table. that if you knew where to go and who to ask, as with any type of service that is on the illicit market, or is something that you would pay for not provided by law but is necessary.
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you could find someone to help you if you had enough money and information. >> gary is in new jersey. caller: i have a question, but first a comment. as far as the catholic response, in 1968, paul the six third opposition to birth control as -- that is the comet to follow up on the earlier question. my comment is, i came across this ruling when researching the history of discovery of the birth control pill. the ruling was, in griswold, it surprised me that it only applied to marry -- married couples. the supreme court had a make a separate additional ruling
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several years later that made it applied to all women married and unmarried. it struck me as awed. my question is, was the supreme court much different seven years later? why did they not make the original ruling to cover all women, not just married women in the first case? >> interestingly, the connecticut law applies to married women and men as well. planned parenthood decided to press the marital issue because they thought it was the stronger argument or anchor for privacy rights or rights to health or life and liberty. the justices pressed emerson who argued for planned parenthood. you're only talking about married people, shouldn't you be talking about unmarried people. the court decided not to take up the equal protection issue.
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they decided to take up the privacy issue for married persons. i think there are some thinking that it was a way to cabin the privacy right at that point in time, but the oral argument hints that it was always likely to give way on equal protection grounds across unmarried lines. >> if i could add to that, i think you picked your plaintiff. at the time, the public was not going to be very enthusiastic about right to contraceptives for single persons. the idea that responsible married people wanted to determine the numbers of their children would get a lot of support. if they had gotten from the first and rights to single persons, there is the problem. it was very easy for the right of married people to trust states issues. preventing couples of having adultery. this state is interested. on the other hand, if the state is prohibiting distribution to single persons, they might have made a case before the court and the concurrent indicates that the court says, laws against premarital sex are fine.
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they said that in griswold. if connecticut had gone forward with the rights of single persons, and i get we do have an interest in dampening the willingness the single person to have sex outside of marriage. caller: the only planning decisions appeared to belong exclusively to women. privacy belongs to mainly women because of the griswold case. doesn't that take husbands out of family planning decisions? and doesn't that mean that men are removed from a vital part of the marriage life? >> there is so much there, let me try to be brief. because birth control was made for women and not men, rights to use it have been a right that has been handed to women. when they try, and you can read from time to time, mother jones had an article a few years ago. there was one in the new york times a few years ago.
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when they tried to do birth control for men, men say they do not like the side effects so they stop the trial and do not proceed with it. when women don't like the side effects they keep going with the trial and put it out. with regard to man, the question of men's rights did not really come up in contraception because so much of it was about the pill when it was invented. men's rights, and these other families, they come up when parents are thinking about choosing schools for their kids, or custody, or in the lawrence case, which we will discuss shortly about two men and the right to have a sexual relationship, but in terms of family planning, contraception and abortion, because it has been set up for pharmaceutical companies and women who are the ones who bear children, and it is put as a woman's right. >> can i add that because of
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what helen said, there has not been a male pill established. condoms are an effective way for men to control contraception. they are always available. always available to men. i think it also bears mentioning that many of the laws that place morals were attempted to police women sexuality and women's sexuality and family formation. legitimacy and other related issues. extension of privacy rights to women and striking down laws that police that sexuality, consequences. >> it went to the supreme court and was heard in 1965. here is a look at the court.
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the eisenhower appointees included the chief justice worn, marshall the second, there were roosevelt appointees. hugo black. a truman appointee, tom clark, and kennedy appointee mr. white and arthur goldberg. we are going to listen to thomas emerson's predecessor. he mentioned earlier that a yale law professor has headed a legal team. he took sick and ultimately passed away. that is when thomas emerson came into the case. we have this for you to listen to.
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>> the current case is, the case of dr. buxton and mrs. goodwell, the two are that are being convicted as accessories for advocating contraceptive device. not only involved with due process laws, i like to advise people with privacy. dr. buxton claims that from practicing this, according to scientific principles and takes due process. there is also involved a problem of freedom of speech of the first amendment, which prohibits congress and the states from passing any law berating freedom of speech. certainly, one of the most intimate and sacred relations of life is the relation of a man and his wife in the privacy of their own home. when the long arm of the lot reaches into the bedroom and prohibits a man and his wife from doing what they want to do
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and what medical suggests they do, it seems this is in invasion of the freedom of liberty. >> that is an outline of the thinking of the connecticut defendant in the case. there is something called a rational basis that the court cap apply to laws. since connecticut and massachusetts are the only states that have it, why did they go so far as to develop this legal framework? >> earlier, rachel spoke of the state police power. the state has the right to make laws that govern health safety welfare and use of the same -- used to say morals. if the state makes these laws, ordinarily, a court takes a look at them and says, this is irrational. is it related to a state interest for healthy welfare? it is fine. it is what a law touches a
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constitutional right that the court says now we will take a harder look at it. a little harder look today if it involves a distinction between men and women. a really hard look of it has a race distinction and a really hard look if it touches upon a fundamental right. those fundamental rights, some are in the bill of rights. griswold said some of them are not, but they are still fundamental rights members of the court can tell you what they are. this is what planned parenthood of connecticut wanted. they wanted the court to say it was a fundamental right and they will take a hard look at state funding. -- at the states limiting it. >> it was interesting listening to the 14th amendment, process laws, freedom of speech, the first amendment. how did it coalesce into the direction it went? >> planned parenthood argued that all of those amendments had aspects that were fundamental to liberty.
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in their briefs and before the court, they said these things. there are various amendments for the bill of rights. the fourth, the fifth, the ninth, the 14th, all of which appear in douglas's opinion. it protected the privacy of the home and the privacy of the marital relationship. that was a distinct set of those a moment think something about marriage in the home that was than-- that was different other regulations that could pass the laugh out loud tests. if the state has any reason for passing the law, it will stand. in this realm of private decision-making and personal relationships, the state's did -- the state has to have a better reason. caller: it occurred to me when i was watching this. why, when it comes to both
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contraception as well as abortion, did no one say this is a violation of the 14th amendment and a form of slavery by taking away the rights of a woman to control her own body? it is particularly interesting to me because i gave birth for the first time in 1966. this is very meaningful to me. >> anyone follow that legal argument? >> i have heard that argument made legally and in ethics or philosophy terminology. i have heard some people refer to the united states as original sin as slavery. slavery and the law regarding that in the law after regarding jim crow and the lot today on racism and discrimination have really got their own niche. we don't tend to cross over between sexual expression interests or web it -- or sexual expression or slavery.
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it is a thing in itself but does not get used in other categories. >> we know that thomas emerson was part of the legal team. what happened to katie? was she a part of the team? >> she was but she did not argue the case. i think there was conflicting evidence about what happened. from what i read, she remained part of the legal team working on the strategy, being in the brief and supporting emerson who delivered the opening argument. >> the argument from connecticut that she was making followed through to the supreme court brief. for the extent we have evidence of her role there was similar arguments. >> a word in 1965. where was it in its line history -- long history of expansion of rights?
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>> towards the beginning, to the great surprise of the republicans who had appointed warren, you have also got harlan who was appointed by eisenhower to the great surprise, many people his opinion is there is nonsexual rights in the constitution. -- non-textual rights in the constitution. i would not call it the heyday of what people commonly called the war in court, -- warren court, with republicans making decisions that now would be called liberal. this was the beginning of that period. >> what were your observations about the warren court that people should know? >> i think that commentators of the era were surprised by griswold because the warren court, so many of its landmark cases involved criminal justice, rights of free speech, entitlements by this rates, but had not been issues related to
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marital privacy or sexual expression. i think griswold, in some ways, is in the debate that helen describes between deferring to legislators or taking a harder look at legislation as judges when it touches on fundamental rights, that was there. this, i think griswold stands apart from other notable war in cases -- warren cases. >> another tweet of other catholic church. there were noted exceptions that were a lot for contraception , whereas connecticut seemed to outlaw even exceptions. >> even today, it is the 50th anniversary of my betaine -- the 50th anniversary of it. the exception of when it was used for the mothers health. it was used to treat something,
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a health condition but not contraception. connecticut did not say that there was all this confusion. it comes up among the justices in the states and records. it seems nobody is getting in a way of use of contraception for disease, that there is no law that says it is ok. it is really as rachel indicated, people doing what they could get away with until they eventually decided to push the law in the face of the of the authorities and get it decided. >> and interesting aspect of the , the side, connecticut supreme court of connecticut ruled there was no exception for health, but the abortion law in connecticut about abortions for woman.e of the pregnant the abortion law was more liberal, or less restrictive than the birth-control law in 1965.
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>> we are in the era now or there are to -- there are audio recordings. after they remade the go to the national archives. joseph e clarke was the attorney arguing for the state of connecticut. i think he was in the attorney general's office for the state. this is his only case before the court. let's listen to how he fares in an exchange with the justice. >> mr. clark, what you are touching on leaves me to ask, what is the purpose of this legislation connecticut do? your basic argument is that this is well with him the so-called police power of the state of connecticut. what is its purpose?
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>> i think its purpose -- >> to increase the population of connecticut or decrease? >> i don't think that this is a -- we could make this claim. i think it is to reduce the chances of immoralities. i use the word immorality here in a broad sense. that is, in one way to act as a deterrent to sexual intercourse outside of the marital relationship. >> this is involving only married women on this record, how can you make that argument? >> on this record, the statute is a valid exercise of police power. >> to what purpose? >> on this record there is a
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distinction, there has to be a distinction between birth control and the use of contraceptives. that is to say that all contraceptives involve birth control. in order to practice so-called birth control, one does not have to use contraception. the state is able to take this position and take the distinction. should married people be allowed to use these devices? is the state not going too far? i think the state can answer to that, that there are other methods available to married people. >> what are you hearing and that attorneys argument on behalf of the state law? >> i hear that no one, no justice and not even lawyers for -- lawyers for connecticut believe that the law banning contraceptives for married,
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unmarried, but from a particular was any good at deterring people from extramarital sex. it seems that no one is buying the argument. that is what you really here in the conversation. you say that is what that state law is meant to do. clark argues later in his argument, this is a question of power. does connecticut have the power to enact moral legislation? even if you do not believe that we are accomplishing the goals that we set out to as a state. he said that we have the power to pass this law. >> what strikes me is that by the time he got to the supreme court, he was not able to articulate this. this is the question for me that goes to any lawyer coming before the supreme court. he should have this very ready.
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he could've made the argument that we do know -- there is this law and economic literature on contraception and sexual expression. we do know that people think when a risk is in short again, -- in short again they will do more of the risk. he could've said, i know it only applies to women, really, because they are only making birth control for women. it is not about trying to reduce extramarital affairs, but maybe it will reduce them among women, and the men they might be sleeping with who are not their husbands. it is not something that people would love to hear today, but at least it would've had more rationality. i am really struck by his inarticulate is at the point of the supreme court. >> joe on twitter says, clark, the poor guy tried to argue against it in less we can landmark cases and goes on to remind us. justice stewart dissented. the guy looks lame here.
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maybe could talk about justice stewart's conclusion that he ended up coming to comment even though he was really questioning the fundamental of the law. >> justice stewart apparently had a strong preference for federalism, for the power of state to enact laws there will -- that are within health safety welfare. the more likely answer is that he believed in what rachel talked about as the argument of attorney clark who says, a think this will prevent immorality, he could not articulate how, but justice stewart saw that it was very dangerous down the road with justices sitting in a super legislature making laws when they should be making them for itself. >> justice stewart is famous for this.
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it is apparent in that line of questioning, but he wrote and was concerned about going back to the days of lochner. >> he's in one of the landmark cases. >> the connection between lochner is? >> new york had regulated the hours that bakers could work. landmark cases viewers would know. the supreme court struck it down as an infringement on liberty, the right to contract. it is really after lost mad that the court refuses to use its power under the 14th to strike down any acts of the constitution. these are based on due process arguments about the wisdom of state regulation.
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-lochner era, he is writing about the courts concern that we are living in a post-lochner moment. >> is really interesting how when planned parenthood was arguing this case in the brief, it says we're not going back to a time when a supreme court can strike down state laws regulating minimum wage. don't worry, we all know that is bad. we think we threaded the needle by saying states can improve the quality of life for people who limit their hours. of their wages, pass laws on it. they cannot restrain fundamental rights. you see the brief china thread that needle. lochner was a very dirty word in those days. when stewart says we're going back to lochner it is very resounding.
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>> we have a half an hour left to go in this edition of landmark cases. a planned parenthood case by which they established the right to privacy. and last half hour we will talk about the decision and the framework that it established that led to several decades of expanding privacy and rights for americans as a result. lots more time for your phone calls. phone numbers on the screen and you could send us a tweet as well. i'm going to take a call and that we will go back to the decision. caller: i just have one question. i don't think many of us familiar with the law note too much about it. we vaguely know what the constitution means. i am curious if you could explain a little bit more about the right to privacy at all the rights that come under the bill of rights with the penumbra. i also wanted to mention, griswold v connecticut, if you really look at it, even though a lot of us have legal scholars, it seems that he did the right
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thing. that they looked at a personal person's right, the right to privacy, and they made it good judgment, in my view, and i believe many others of my friends and colleagues believe the -- they made the right decision. my question is, and only have different people with different preferences and religious freedom is kicking up. i don't like that because i think we should all have individual freedom right, not push our rights on others. i wonder if you could touch base on our rights that people should not be able to push, even though it is our rights, we should not be able to push it on to others. and you explain that? >> let me get into the decision. june 2, 1965 was the date the decision was handed down.
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our producer reminds us that is the same day that the gemini astronauts return to earth in 1960. it was a seven-to vote for the majority. there is a breakdown of the majority and the two justices. as an expert of william o douglas's opinion. so, take us down his legal reasoning. >> this will answer the penumbra's question.
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what he says is, there are attacks that provide constitutional or fundamental rights to contraception. there is this language in the 14th amendment that also protects -- excuse me, i am getting ahead of myself. he says there is a right of privacy that it is part of, even if it is not explicit in other amendments in the constitution. he says it is free speech, but we stayed is freedom of association, which is a privacy thing. in the right not to have your home search. you're right not to quarter soldiers, except under particular circumstances. all of this speaks of a right to privacy. he even mentions the ninth amendment, which says certain things to the state that are not
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taken by the federal government. he says the right of privacy is not in any of them. if you look at the other elements of the bill of rights that i have mentioned, there are penumbras. there are things without which the explicit rights are not really showing enough. i am going to say that the right of privacy is in that fuzzy penumbra coming out of some of the eight amendment rights. >> could you do find word penumbra for people watching. >> justice douglas was ridiculed for using the term penumbra, latin scholar. the idea that there is a shadow cast by the amendments that concludes a privacy interest that makes the first third, fourth, fifth, 15th, do not make sense without some privacy background. privacy in the shadows lurching
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forward into the daylight. >> so a yale law professor has a book on the constitution. he describes douglas's arguments as strained. he went on to say that john marshall harlan the second, who is it noted constitutional conservative, made a more rational argument saying that america's basic practices render connecticut's oddball law on constitution. >> there are a couple of things going on. one was when we talked about lochner. it seemed that douglas did not want to find a right in the 14th amendment for a liberty that people had that could cast down, that could strike down state laws statewide. people have these economic rights. one, he is probably trying to
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avoid putting it in the 14th amendment like harlan did because he wanted to avoid lochner. number two, he might have been afraid of going too far. he wanted to start with things that were definitely in the constitution and say there is a firm tie. harlan makes this argument, relies on well loved cases. meyer versus nebraska, peers versus society of sisters. of course parents have a right to teach their children german. of course parents can decide if their children go to a religious school. harlan says, in the past this court has found that people have rights that are not in the constitution. we did it through the 14th amendment. those cases are popular, i don't see why we cannot look contraception alongside them. >> let me go on to justice black.
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we talked about the dissent. here is a bit of language from justice black. justice black is sometimes called the original original, before antonin scalia a got to the court. what is he saying? >> it is focused on this debate we are having about the textual nature of rights. he says, there is no fundamental rights to privacy because the constitution only speaks of constitutional provisions designed to protect privacy at certain times with respect to certain activities.
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justice douglas has a strange argument. how can you show that a law unmarried persons and use of contraception's helps protect uphold the third amendment, or the fifth amendment? there is a gap there. he says are trying to fill that does not make sense in light of the approach to the constitution. he is also famous for saying he likes his privacy as much as the next person. but that without a hearing to the text of the constitution, the court becomes a day-to-day constitutional convention. a super agency that splits and judgment over the legislative -- legislator. >> let's listen to the current justice, and unsuccessful reagan nominee talks about their views of the griswold case.
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>> what i objected to was the way which this right of privacy was created. that was simply this. justice douglas observed that a number of provisions of the bill of rights protect aspects of privacy, and indeed they do and indeed they should. he went on from there to say that, since none of the provisions did that and since they had emanation, but -- by which i think he meant buffer zones, he would provide the number which created a new right of privacy that existed where no provision of the constitution applied. >> i think that the griswold and the holding of griswold does
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have grounding in the constitutional attacks. in -- the way most justices have that about this is that the 14th amendment, the due process clause of the 14th amendment guarantees liberty. when it guarantees such a liberty, it means more than freedom from physical constraints. it will also guarantee more than procedural protections. there is some substantive protection of liberty that is incorporated within the 14th amendment of the constitution. >> we will move from those arguments, which we have been talking about, to reaction around the country. june 8, 1968, they find connecticut law invades privacy. to the washington post, brits in wedlock held legal. they void law barring contraceptive. now let's spend time on griswold's legacy.
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what shall we know about griswold, dr. buxton or attorney emerson? >> in the case of griswold, she ended up any dispute with planned parenthood and it was largely over where the clinic should be and could she lived there and take her for husband there. she left because of a dispute. she was a vocal supporter of women's rights to contraception's through the end of her life. she died maybe in 1981. she lived a long 81 years. >> eventually, the state of connecticut puts her in their hall of fame for accomplishments of people in the state. buxton took a leave of absence from yale in 1965. as the case was being heard. he lived until 1969. mr. emerson continued teaching at yale law school and died in 1991 and never argued another case for the supreme court. we have mentioned a few times that this started a number of cases.
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the next one was 1972. an excerpt from that majority opinion. >> they put their foot in the up -- the pond. or hoped that the court would continue. what was happening in society, or in the court that they moved on to a broader expansion of all people having rights? >> everything that adds up to the words of the sexual revolution. the idea that single persons were likely to have nonmarital sexual relationships. the argument of wouldn't it be better if they use contraception
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and did not get pregnant. bill would go to catholic university campuses in washington dc and handed out there to try to provoke a controversy. there were public spectacles on the topic. there was bigger margins of the sexual revolution among younger of of -- younger americans. >> there are cases that have been heard and decided by. 1973 it was the framework for roe v. wade. an issue we are still debating in society today. harry versus population services international, 1977, which found that birth control was legal for those at the age of 16. lawrence v texas, which was the sodomy ruling and then 2016, the gay marriage case. walk me through what is happening in the court and in society and how they continue to use this case to expand rights.
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>> griswold becomes important culturally and legally. culturally, as helen mentioned, sexual ideas are changing. women's roles inside and outside marriage are changing. technology around reproduction is changing. there is an evolution in decisions around sexuality that is reshaping the u.s. story for families and for gender. as a matter of law, griswold is interpreted in this line of cases -- these line of cases as providing an anchor for some due process. there are rights that are fundamental to people that are not explicitly enumerated in the constitution, but nonetheless,
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states may not violate. roe v. wade, establishing a right to abortion. in the 14th amendment constitutional right to privacy. and it is repealed and planned parenthood versus kc. -- kc. casey. those link back through griswold in the debate. >> when a court later talks about griswold, today you would not know what was not the 14th amendment due process case. they often treat it as that. number two we went from the right of privacy inside a marriage, inside a marital bedroom to the right to make important decisions in your head. these include rights regarding sexual expression. sexual expression becomes more and more separated from communities, from the fact that it is where children are
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created, from the fact that it might be -- it does or does not take place in marriage. it gets separated from that and it becomes the right to express yourself, the right of identity. you see the due process right of expression more thing -- morphing in lawrence. finally for a right to establish your identity. it went a long distance from where it started inside the marital bedroom inside griswold. >> justice kennedy's language could have easily been listed from the sacred and enduring lifelong -- as much as there was an individual component to the decisions people make to marry, express himself sexually, to have an abortion or to seek up with control, it is also about community. a community of people trying to raise children and seeking to express love and do it within
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the confines, or the institutions of marriage. the court itself is undergoing enormous changes. >> can you both talking about what is happening in the courts. when we were looking at bork, rachel reminded me that kennedy was the justice who ended up being appointed at that time. kennedy is the swing vote. it will be in the way that griswold would say so. the right of contraception, the constitutional right of abortion were affirmed and not over firm. -- overturned. no matter what happens in court within your distant future i do not see griswold going down. i see it being spoken of as it was the 14th amendment in a due -- substantive due process case. it is quite possible that roe might be part of a shift in the court that might change this.
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>> we have now seen decisions from the current court, which has changed. that suggests that it is not clear what the future holds. certainly, if the change since 1965. cases like women's health, cases like hobby lobby, which i think we will talk about if we have time. it suggests the court is wrestling still with the issue of contraception. do employees have to cost -- have to give contraception under the affordable care act? can a state decimated a reproductive health infrastructure without any health reason and placing undue burdens on people in that space for women's health? no. it is a complicated picture. >> more fundamentally, the court is still fighting over how do
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you find a non-sexual constitutional right. -- non-contextual constitutional right. some of the things we found in griswold is still bringing around. all these years later the plate is as hot as it was then. >> on facebook they make the 10th amendment argument that the court does that the court does the have the right to do this. it says that the federal government needs to refer to the states for all things not enumerated. >> i think that that is almost the ninth amendment that the court should protect people's interest, that people retain rights not explicitly mentioned. the argument that the justice was trying to make in his
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concurrent -- that argument also has not had much in the way of late. it suggests states have all the power and courts of all the power. that is wrong with our -- that is what is wrong with our balance of power between courts. between state legislators and federal governments. we have a separation of powers that keep anyone -- that is an important part of our democracy. >> that argument has not had legs. at some point, you might have the majority of justices and say, show me the history and tradition where this right is embraced by the country. the justices will say, we can name broader, involving kinds of justice. i have never seen the 10th amendment argument get legs. >> the caller watching us in arlington, virginia. caller: i was at thinking about justice kennedy.
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with your reduction in the due process argument when it comes to protecting [inaudible] >> it is hard to know. there are strong precedents now that support the due process approach due to rights to privacy. to untangle to disregard all of , them would be a huge change at this point. i don't think it is as easily and done as we suspected to be just by the retirement of one justice. would it shape future cases and future interpretations of due process protection? undoubtedly. we see that with appointments. but revolutionize the due process doctrine i think that , would take more time.
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>> this is a good time to play our last clip. the griswold decision is one of the most frequently asked about for potential supreme court justices going through the senate confirmation process. let's show you a clip from the most recent one. neil gorsuch is was asked about it in his confirmation hearing. >> griswold held that the 14th amendment due process liberty cause provided a right to married couples and to the use of contraceptive devices to privacy of their own home. eisenstadt extended that to single persons. they have been settled for 50 years, nearly, in the case of griswold. there are reliant interests that are obvious. they have been reaffirmed many times. i do not see a realistic possibility that a state would pass over a law, attempting to undo that, or that a court of the united states would take such a challenge seriously.
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>> when you hear him fame it in this particular way, what are you hearing? >> i am shocked. that he misstated the holding of griswold. he said it was the liberty cause, and it did not. the majority did not. -- i hate to use that blatant word, the question, do you think what the court did was correct by stating what is undoubtedly correct, you're not going to see this kind of login, so please don't worry about it, it will never come to me. >> i heard the same and i also heard that the holding of griswold as is there a right to privacy, is there not? this is an interesting conversation about what is
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limiting about this decision in other ways. a right to privacy does not guarantee any individual the right to gain access to those services. it does not fund public or private clinics at a higher rate. it does not speak to a quality in the ways that we have discussed. i found his answer -- my reaction is, that would i would expect a supreme court justice nominee to say. it leaves the door open. for other cases to come which are outside that narrow framework. >> probably going to be our last caller, you are on the air. caller: i grew up in north haven and i remember at 16 years old driving by that planned parenthood center. they had religious women -- i don't know if they were -- they were not nuns, but they were people performing a prayer
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service of -- on their knees on the sidewalk. i wondered if that -- it was 24 hours a day for weeks. i wonder if that affected the case positively or negatively? >> from a historical perspective, what do you tell your students about the societal frameworks? >> i usually talk about the technology of the pill -- bill and what a gigantic cultural moment that was. i usually talk about the laws on the books for cohabitation, adultery, nonmarital sex. the pill came into a pretty conservative country on sex. i did not know about the protesters or the prayers outside the clinics. i usually talk more about the pill and the technological and cultural moments.
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you tell your students? >> i often teach griswold as part of a family law course. i tell my students a little bit about the parenting cases, the sterilization cases that came before griswold that helped convince that there was a fundamental right to privacy. i do that because i think it gives them background. the ways in which we thought about parenting marital intimate relationships as something that needed a closer look. that helps make sense of some of the cases to come. and what are the limits to that? that there are state interests. there are fortification walls, adultery laws. those are constitutional laws. they still exist in states. they do not exist in the number that they had in the past, but
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states still have a considerable amount of leeway in protecting the health of its population. >> there are a dozen state constitutions and many that speak directly to the right of privacy. it sounds like there will be continued challenges. >> my students say, when they have taken griswold and the cases that came after, they say i did not know this was a constitutional law class, i thought it was family law. i say, we are going to follow this fight over what is due process and the rights that the liberty class of the 14th amendment provide. we will follow it right up today. griswold is the place where you first get the interesting roiling in the family law context. >> that is a great place to leave it. thanks to both of you for being at the table. thanks to the national constitutional center. we have many more cases to cover.
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we have a booklet we have put together that has a synopsis for each case. you can find on our website at landmark cases if you like to learn more. thanks for being with us tonight. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] ♪
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>> next monday. charles katz, a bookie was tape recorded by the fbi while transmitting illegal bets from a telephone booth on sunset boulevard in los angeles. the supreme court's decision in this case ultimately expanded americans' rights to privacy under the fourth amendment and forever changed the way law enforcement officers conduct their investigations. our guest to discuss this case are jeffrey rosen, president and ceo of the national constitution center and founder of the national security institute and director of the law and policy program both at george mason university's antonin scalia a law school. watch landmark cases next monday. join the conversation. htag is landmark cases. wee


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