Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P32 pptx

Controversy over the role of government support of the arts arose in the late 1980s with two artists who received NEA funding. In 1988 the photographer Andres Serrano received harsh condemnation for his photograph titled Piss Christ, which depicted a plastic crucifix floating in a jar of Serrano’s urine. Numerous senators sent letters of protest to the NEA, insisting that the agency cease underwriting vulgar art. A second furor arose in 1989 over the work of another photographer, Robert Map- plethorpe, who received NEA support for his work, which depicted flowers, nude children, and homosexuality and sadomasochism. Senator JESSE HELMS (R-N.C.) argued the most vociferously against the NEA choices and introduced legislation to ban funding of “ob- scene or indecent art” (1989 H.R. 2788 [codified at 20 U.S.C.A. §§ 953 et seq.). The Helms Amendment, adopted in October 1989, gave the NEA gr eat power and latitude to define obscenity and QUASH alternative artistic visions. To enforce the new amendment, the NEA established an “obscenity pledge,” which re- quired artists to promise they would not use government money to create works of an obscene nature. The art world strongly resisted this measure: Many museum directors resigned in protest, and several well-known artists returned their NEA grants. Two important cases tested the power of the NEA to censor artistic production. In Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991), a dance company refused to sign the obscenity pledge and sued on the ground that the pledge was unconstitution- al. A California district court agreed that the pledge violated the First Amendment right to free speech and that its vagueness denied the dance company due process under the FIFTH AMENDMENT . In New School v. Frohnmayer, No. 90-3510 (S.D.N.Y. 1990), the New School for Social Research, in New York City, turned down a grant, claiming that the obscenity pledg e acted as PRIOR RESTRAINT and, therefore, breached the school’s First Amendment rights. Before the constitutionality of the prior restraint argument was decided, the NEA released the school from its obligation to sign the pledge. The NEA abolished the obscenity pledge in November 1990, but in its place instituted a “decency clause” (1990 Amendments, Pub. L. No. 101-512, § 103(b), 104 Stat. 1963 [codified at 20 U.S.C.A. § 954(d)]), which required award recipients to ensure that their works met certain standards of decency. Failure to comply with this demand could mean suspension of grant payments. Again the art world protested. In Finley v. NEA, 795 F. Supp. 1457 (C.D. Cal. 1992), artists known as the NEA Four—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—sued the NEA over the decency clause. A California district court agreed with the artists. The Finley court held that the decency clause, like the obscenity pledge, was unconstitutional because its vagueness denied the artists the due process guaranteed by the Fifth Amendment and because its too-general restriction suppressed speech. Books U.S. parents send their children to public schools to receive an education and to learn the fundamental values on which their demo- cratic society is based. Conflict ensues when parents believe that certain schoolbooks contain material that is objectionable on political, moral, or religious grounds and should be banned in order to protect their children from exposure to allegedly harmful ideas. In so me instances school boards have responded by physically removing books from school library shelves. In ge neral, advocates of book banning maintain that censorship is w arranted to redress social ills, whereas critics believe that freedom of speech is more important and useful to society than imposing values through censorship. Book banning as a way to remedy social problems was first tested by the Supreme Court in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). In Pico, parents objected to nine books in the high school library, most of which were subsequently removed by the school board. The nine books were Slaughterhouse Five, by Kurt Vonnegut Jr.; Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain ’t Nothin’ But a Sandwich, by Alice Childress; Soul on Ice, by ELDRIDGE CLEAVER; and Go Ask Alice, by an anonymous author. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 298 CENSORSHIP Pico debated the authority of local school boards to censor material in the interest of protecting students. The case reached the Su- preme Court because lower courts were unable to devise standards for testing the constitutionality of book removal. The Supreme Court ruled that it is unconstitutional for public school boards to abridge students’ First Amendment rights by banning books. Although school boards have the power to determine which books should sit on library shelves, they do not have the authority to censor. Books published by commercial presses for sale to the general public sometimes meet with harsh condemnation and subsequent action that could be tantamount to censorship. In November 1990, Simon and Schuster canceled its contract with author Bret E. Ellis to publish his novel American Psycho, citing the work’s graphic violence and sexual brutali ty. The National Writers Union decried the cance llation as censorship because it was contrary to free speech and artistic expression. The publishing house defended its editorial judgment by claiming it did not want to put its imprint on a book of questionable taste and value. Vintage Books, a division of Random House, soon acquired the novel, and published it in March 1991. Students’ Speech Students’ free speech rights sometimes clash with schools’ interest in maintaining control of public education. Students’ First Amendment rights were affirmed by the landmark Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), which ruled that public school students could not be penalized for wearing symbols, such as black armbands, to protest the VIETNAM WAR. Two subsequent cases dealing with issues of censorship in school newspapers pointed to a more restrictive judicial view of students’ right to free expression. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), the Supreme Court ruled in favor of a Hazelwood, Missouri, school principal who removed several articles from a student newspaper. The articles dealt with teen pregnancy and a student’s feelings about her parents’ DIVORCE. The Court in Hazelwood held that a school newspaper is not a public forum and thus granted school officials the right to determine what type of student speech is appropriate and to regulate such speech. Three years later, the ruling in Planned Parenthood v. Clark County School District, 941 F.2d 817 (9th Cir. 1991), was based on Hazel- wood. In Plann ed Parenthood, a public high school newspaper solicited advertisements from local businesses, including Planned Par- enthood. The princ ipal refused to allow Planned Parenthood to place an advertisement in school publications, and Planned Parenthood sued the school distric t. The Ninth CIRCUIT COURT of Appeals upheld a district court decision that a public high school publication is not a public forum and that the school could, therefore, accept or reject advertisements. Both Hazelwood and Planned Parenthood concluded that because public high schools are nonpublic forums, school districts can apply a limited degree of censorship. Hundreds of public universities in the United States have speech codes to regulate students’ choice of words. Speech can be constitutionally curtailed in some circumstances. For example, public COLLEGES AND UNIVERSITIES can forbid threats of violence, prohibit obscene language A student displays two books that were banned from a local high school’s English classes when parents voiced disapproval of the content. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CENSORSHIP 299 and conduct (although it is extremely difficult to define or prove obscenity ), and punish students for using defamatory speech against each other, all without violating the First Amendment. Numerous cases have successfully contested free speech limitations on campus, suggesting that a majority of these codes are unconstitutional. In Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), a biopsychology student maintained that the university’s speech code prevented him from freely discussing controversial ideas about biologically based differences between the sexes and races. A district court ruled that the university’scode proscribed too great a range of speech and, therefore, was an unconstitutional infringement on the plaintiff’s First Amendment right s. The court also held that the overbroad nature of the code denied his due process rights. A University of Wisconsin student was accused of violating the univer sity’s speech codes by yelling rude comments at a woman. In U.W.M. Post, Inc. v. Board of Regents, 774 F. Supp. 1163 (E.D. Wis. 1991), the university’s speech code was also struck down as overbroad. Two years later, school officials punished fraternity brothers at GEORGE MASON University for dressing in drag and staging an “ugly woman contest.” In Iota X Chapter v. George Mason University, 993 F.2d 386 (1993), the Fourth Circuit found that the university had violated the First Amendment because it did not sanction the fraternity merely for its conduct, but rather for the message conveyed by the “ugly woman contest,” which ran counter to the views the university sought to foster. The Internet and Computer-Related Technologies Computer-mediated c ommunication grows sharply every year and in some ways outpaces and obviates current legal principles. The prevailing concept of law applies to real-world events and transactions, and, as those in the legal field are realizing, may unravel when exercised in cyberspace. As more and more people transmit widely divergent messages on the electronic highway, issues of free speech and censorship become increasingly complicated and regulations difficult to enforce. The first case of criminal prosecution of electronic communication involved the distribution of pornography over an electronic bulletin board system (BBS). In United States v. Thomas, No. CR-94-20019-G (W.D. Tenn. 1994), Robert Thomas and Carleen Thomas were found guilty of disseminating obscene materials by interstate telephone lines and computer. From their home in California, the Thomases ran an adults-only private BBS from which subscribers could download computer graphics files and order sexually explicit photo- graphs and videotapes while online. To gather evidence against the couple, a Memphis postal inspector, under an assumed name, down- loaded to his computer many of the porno- graphic electronic files and ordered tapes. The Thomases were charged with, among other actions, transporting obscene materials across state lines. The couple attempted to transfer their case to the Northern District of California, so that their materials would be measured against that community’s standards of obscenity, rather than the obscenity stan- dards of the Western District of Tennessee. The district judge denied their request, noting that in obscenity prosecutions the trial can be held either in the district from which the material was sent or the one in which it was received. Similar INTERNET and censorship issues regarding CHILD PORNOGRAPHY were raised in the April 2009 case involving a 38-year-old employee of the Seattle Children’s Theatre (SCT). William Edgar Hoke was accused of obtaining child pornography from an interna- tional Internet bulletin board on which mem- bers exchanged pornographic images. Tipped off by European Union auth orities, the U.S. Postal Inspection Office began investigating the site in 2007, and it determined some 545 members were registered with the Internet business. This investigation led U.S. authorities to Hoke, who had used his home computer and the one at the theater to access the bulletin board. The SCT cooperated with the investiga- tion, explaining that its employees undergo a background check and must sign a contract regarding the theater’s policy concerning con- duct with minors. The “virtual” nature of cyberspace poses a number of problems for courts and legislatures on the issue of obscenity. Among the most difficult of these is the issue of community standards. Because the Internet brings together people from all over the United States and all GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 300 CENSORSHIP over the world, it defies identification with any particular community. Other difficulties are connected to the criminal element of knowledge and the issue of dissemination. Persons may post and receive information on Internet bulletin boards without the knowledge of those who maintain the BBS, making it difficult to determine whether the BBS operators “knowingly disseminated” obscene materials. Congress has attempted to restrict the dissemination of indecent material found on the Internet, but several of these efforts have been struck down by the Supreme Court. In 1996 Congress passed the Communications Decency Act (CDA) in an effort to regulate content found on the Internet to protect children from harmful content. However, in Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Court struck the statute down, holding that law was overbroad and constituted a content-based blanket restric- tion on speech. In 1998 Congress enacted the Child Online Protection Act (COPA), which was a dire ct response to the Court’s 1996 decision. COPA made it illegal to use the World Wide Web to communicate “for commercial purposes” any material considered to be “harmful to minors.” The law also incorporated the three-part obscenity test that the Supreme Court formu- lated in Miller v. California. Several parties challenged the statute, leading to the Court’s opinion in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002). The confusing decision, which produced five separate opinions, offered lit tle solid guidance about the appropriate standard to judge whether a statute overly restricts Internet content. The Court remanded the case for a full examination of the law on all issues. A month later, the Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002) ruled that the definition of “child pornography” in the Child Pornogra- phy Prevention Act (CPPA), 18 U.S.C.A. § 2256 was overbroad. The CPPA defined child por- nography to include not only real children but also virtual representations of children. The Court concluded that allowing such a broad definition could lead to regulation of protected works, such as William Shakespeare’s Romeo and Juliet and the Academy Award winning film American Beauty, both of which contain story lines of minors having sex. The U.S. government has long been con- cerned about the impact of emerging tech- nologies on its ability to regulate undesirable communications. Given the invention of radio and telephonic communications during the late nineteenth century and the nascent deve lop- ment of television during the late 1920s and early 1930s, Congress passed the Communica- tions Act of 1934 (47 U.S.C. §§ 151 et seq.), which created the Federal Communications Commission (FCC) to help oversee this area of the law. The successor to the Federal Radio Commission, the FCC is charged with regulat- ing interstate radio, television, wire, wireless, satellite, and cable communications, as well as all international communications that originate or terminate in the United States. The FCC’s jurisdiction extends to all 50 states, the District of Columbia, and United States possessions. The FCC is independent of the EXECUTIVE BRANCH and is directly responsible to Congress. At a high level, the FCC is responsible for the orderly development and operation of broadcast services, provision of rapid and efficient communication services at reasonable rates, promotion of competition among com- munication providers, and strengthening of national defense. The commission’s primary tools include the power to issue and revoke broadcast licenses, make rules, investigate and adjudicate disputes, issue orders, and publish findings. The FCC’s Office of Strategic Planning and Policy Analysis is charged with the duty of staying abreast of technological developments in the marketplace and devising strategies to make sure the law adapts to those developments. FURTHER READINGS Bussian, James R. 1995. “Anatomy of the Campus Speech Code: An Examination of Prevailing Regulations.” South Texas Law Review 36 (February). Butler, Deborah A. 1992. “Planned Parenthood of Southern Nevada v. Clark County School District: The Evolution of the Public Forum Doctrine.” Wayne Law Review 38 (summer). Byassee, William S. 1995. “Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Com- munity.” Wake Forest Law Review 30 (spring). “The Call to Campus Conduct Policies: Censorship or Constitutionally Permissible Limitations on Speech.” 1990. Minnesota Law Review 75 (October). Couvares, Francis G., and Charles Musser. 1996. Movie Censorship and American Culture. Washington, D.C.: Smithsonian Institution Press. Foerstel, Herbert N. 2002. Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries. Rev. ed. Westport, CT: Greenwood Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CENSORSHIP 301 Kolbert, Kathryn, and Zak Mettger. 2002. Justice Talking: Censoring the Web: Leading Advocates Debate Today’s Most Controversial Issues. New York: New Press. Lambe, Jennifer L. 2008. “The Structure of Censorship Attitudes.” Communication Law and Policy. Autumn. Madved, Lory. 1992. “Protecting the Freedom of Speech Rights of Students: The Special Status of the High School Library.” Capital Univ. Law Review 21 (fall). Orbach, Barak Y. 2009 “Prizefighting and the Birth of Movie Censorship.” Yale Journal of Law and the Humanities. Summer. Schlegel, Julia W. 1993. “The Television Violence Act of 1990: A New Program for Government Censorship?” Federal Communications Law Journal 46 (December). Strossen, Nadine. 1996. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: Anchor Books. Walker, Michael W. 1993. “Artistic Freedom v. Censorship: The Aftermath of the NEA’s New Funding Restrictions.” Washington Univ. Law Quarterly 71 (fall). CROSS REFERENCES Art Law; Child Pornography; En tertainment Law; First Amendment; Freedom of Speech; Freedom of Press; Movie Rating; Prior Restraint; Schools and School Districts. CENSURE A formal, public reprimand for an infraction or violation. From time to time deliberative bodies are forced to take action against members whose actions or behavior runs counter to the group’s acceptable standard s for individual behavior. In the U.S. Congress, that action can come in the form of censure. Censure is a formal and public condemnation of an individual’s transgressions. It is stronger than a simple rebuke, but not as strong as expulsion. Members of Congress who have been censured are required to give up any committee chairs they hold, but they are not removed from their elected position. Not surprisingly, however, few censured politicians are re-elected. While censure is not specifically mentioned in the U.S. Constitution, Congress has the right to adopt resolutions, and a resolution to invoke censure falls into this category. The first use of censure was actually directed not at a member of Congress but at a member of George Washington’s cabinet. ALEXANDER HAMILTON, Washington’s treasury secretary, was accused of mishandling two congressionally authorized loans. Congress voted a censure resolution against Hamilton. The vote fell short, but it established censure as a precedent. In general, each house of Congress is responsible for invoking censure against its own members; censure against other government officials is not common, and censure against the president is rarer still. Because censure is not specifically men- tioned as the accepted form of reprimand, many censure actions against members of Congress may be listed officially as rebuke, condemna- tion, or denouncement. The end result, howev- er, is the same, and to all intents and purposes these are censure measures. At the same time, each censure case is different, and those delivering censure like to have enough leeway to tailor the level of severity. Still, the prospect of an open, public rebuke by one’s peers is painful even for the most thick-skinned politician. Noteworthy Censure Cases Among the best known censure cases in Congress were the 1811 censure of Massachu- setts senator Timothy Pickering for reading confidential documents in Senate sessions and the 1844 censure of Ohio senator Benjamin Tappan for releasing a confidential document to a major newspaper. Perhaps one of the more colorful censure motions was the 1902 censure of South Carolina’s two senators, Benjamin R. Tillman and John L. McLaurin. On February 22, 1902, they began fighting in the Senate chamber. Both men were censured and sus- pended for six days (retroactively). Probably the most infamous censure case was the condemnation of Senator JOSEPH R. MCCARTHY (R-Wisc.) in 1954. McCarthy took the national stage at the height of the anti- Communist movement following WORLD WAR II. McCarthy spent several years making claims that known Communists had infiltrated the U.S. government, and although he never offered proof of even one claim, his crusade was popular and powerful. Many Americans from all walks of life saw their lives destroyed in the early 1950s by groundless accusations of com- munist sympathies. His power unchecked, McCarthy became even more relentless, and in 1954 when he openly attacked members of the Eisenhower administration in televised hearings. His colleagues realized they had no choice but to act. A censure committee was formed, and McCarthy as much as accused its members of being Communists. The vote to condemn McCarthy passed 65 to 22 on December 2, 1954. Robert Torricelli (D-N.J.) was found guilty in 2002 of taking illegal gifts and cash payments GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 302 CENSURE from a businessman and not reporting them. The businessman got help from the senator in LOBBYING the government. Although Torricelli denied the charges, his colleagues found the evidence compelling enough to “severely ad- monish” him. While not called a “censure,” this reprimand clearly had the same effect. Torri- celli, who was up for reelection, saw his popularity plunge in a matter of weeks, and on September 30, 2002 , he withdrew from the race. Presidential Censure Congress rarely acts against the president with a formal reprimand. ANDREW JACKSON was the first president to be thus reprimanded, by the Senate in 1834, after he removed the secretary of the treasury (a responsibility that Congress believed rested with the legislature). Jackson was a Democrat, but the Senate was controlled by the rival WHIG PARTY. Three years later, when the Democrats took control of the Senate, Jackson’s censure was expunged from the records. President JOHN TYLER was reprimanded in 1842 by the House of Representatives, which accused him of abusing his powers. Apparently Tyler had promised representatives on several occasions that he would support certain bills, only to VETO them when they arrived at his desk. In 1848, President JAMES K. POL K was repri- manded by the House for starting the Mexican War without first obtaining Congressional approval. In 1864, President ABRAHAM LINCOLN and his secretary of war, EDWIN STANTON, were condemned by the Senate for allowing an elected member of the House to hold commis- sions in the Army. The Senate voted for the reprimand 24 to 12, but it was referred to a special committee and no further action was taken. In 1998, during the IMPEACHMENT trial of President BILL CLINTON, several members of Con- gress attempted to have him censured instead, believing that while his behavior warranted rebuke it did not merit a full impeachment. The move for censure failed, and Clinton was impeached. FURTHER READINGS Congressional Quarterly. “Congressional Ethics: History, Fact, and Controversy.” 1992. Washington, D.C.: Congressional Quarterly. Thompson, Dennis F. 1995. Ethics in Congress: From Individual to Institutional Corruption. Washington, D.C.: Brookings Institution. U.S. House of Representatives. Committee on Standards of Official Conduct. Available online at http://ethics.house. gov (accessed August 29, 2009). CROSS REFERENCES Congress of the United States; Impeachment. CENSUS A census is an official count of the population of a particular area, such as a district, state, or nation. The U.S. Constitution requires that a census of the entire population, citizens and nonciti- zens alike, be made every ten years (Article I, Section 2, Clause 3). The FOURTEENTH AMEND- MENT to the Constitution directs that the census will be used to determine the number of members of the U.S. House of Representatives from each state. The census is conducted by the U.S. Census Bureau, an agency established in 1899 within the U.S. COMMERCE DEPARTMENT. The data gathered by the U.S. Census Bureau are used by the states to draw boundaries for congressional and state legislat ive districts, and by local governments to establish districts for other representative bodies such as county legislatures, city councils, and boards of super- visors. Census data are also used to allocate federal and state funding and services. By the mid- 1990s more than $50 billion in federal aid for education, housing, and health programs to states and cities was distributed annually based on census numbers. In addition, census infor- mation is used in academic research and is sought by product manufacturers and market- ers who want to know the demographics of potential consumers. The first U.S. census took place in 1790 when some 600 U.S. marshals went door- to-door counting approximately 3.9 million people. The 1790 census consisted of fewer than ten questions, which for each household included the name of the head of the family, the number of free white males over and under 16 years of age, the number of free white females, the number of all other free persons, and the number of slaves. The 1890 census counted 63 millio n U.S. citizens and reflected a dramatic increase in IMMIGRATION, urbanization, and industrializa- tion. That census showed t hat for the first time fewer than half of all U.S. workers were employed on farms. The 1890 census included GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CENSUS 303 questions regarding military service during the Civil War, number of years in the United States, NATURALIZATION status, reading and writing ability, and mental and physical disabilities. By 1980 the Census Bureau conceded that the decennial censuses were underc ounting portions of the population, usually low-income and minority groups in the inner cities. In follow-up surveys after the 1980 census, the bureau determined that it had missed some 3.2 million persons, or 1.4 percent of the popula- tion. For example, a 1986 post-census survey of East Los Angeles estimated that the 1980 census missed about 10 percent of the Latino commu- nity, 7 percent of the Asian community, and 9 percent of the African American community. Census offici als determined that overall, nearly 6 percent of the African American and Hispanic populations were uncounted and less than 1 percent of the white population. By May 1987 the Census Bureau had determined that the 1990 census could be adjusted for undercounting by using a tech- nique called a post-enumeration survey (PES). The PES would allow the census to be checked for accuracy by sending census takers back to a given number of househo lds that would be representative of the entire U.S. population and comparing the information gathered with the initial head count. If discrepancies arose, the bureau could make corrections and project them to neighborhoods with similar demo- graphic characteristics. But in October 1987 officials from the Commerce Department, which oversees the Census Bureau, decided against making any statistical adjustment to the 1990 census. As a result, in 1988 New York, Los Angeles, and several other cities, as well as a number of states and organizations, brought suit in federal district court. They claimed that the secretary’s decision not to adjust the 1990 census violated their right to EQUAL PROTECTION under the FIFTH AMENDMENT to the Constitution and asked the court to enjoin the census. They also argued that the Commerce Department’s actions were politically motivated by a Republican administration that realized that the undercounted population is historically Democratic. The defendants moved to dismiss the complaint, contending that the secretary’s decision was not subject to JUDICIAL REVIEW .InCity of New York v. United States Department of Commerce (713 F. Supp. 48 [E.D.N.Y. 1989]), the district court denied the motion to dismiss, holding that the plaintiffs had standing (the LEGAL RIGHT) to challenge the census on constitutional grounds and that the court could review the secretary’s decision. Following the district court’s decision, the parties entered into a stipulation in July 1989 by which plaintif fs would withdraw their motion to enjoin the census and the Commerce Department would reconsider its 1987 decision not to adjust the 1990 census. The agreement required the Commerce Department to conduct a PES of not fewer than 150,000 households as part of the 1990 census in order to produce corrected counts usable for congressional and legislative reapportionment and redistricting. The agreement also required the department to develop guidelines under which the secretary would assess any proposed adjustment. In March 1990, the Commerce Department issued final guidelines. The plaintiffs challenged them in court on the grounds that they were impermissibly vague and were biased against any adjustment to the 1990 census. In City of New York (739 F. Supp. 761 [E.D.N.Y. 1990]), the district court held that the guidelines satisfied the defendants’ obligations under the 1989 stipulation. The Census Bureau then began the 1990 census. The 1990 census employed more than 425,000 workers who gathered information on an estimated 250 million people in 106 million households. For the first time, the Census Bureau combined technology with traditional door knocking, using coast-to-coast computer- ized maps of all 7.5 million census tracts in the Census workers in a Phoenix, Arizona, data capture center. For the 2000 Census, the bureau planned to hire 850,000 temporary employees to assist its 6,000 permanent employees. U.S. CENSUS BUREAU GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 304 CENSUS United States. The bureau predicted that these maps would reduce the number of errors caused by census workers’ reliance on outdated state and local maps. The census cost some $2.6 billion—65 percent more than the 1980 census—making it the most expensive count ever conducted. In March 1990 the bureau mailed or hand delivered more than 106 million questionnaires, one to every household in the United States. Most households received a short form consisting of 14 questions covering personal characteristics and housing. One in six U.S. households received a long form with 45 addi- tional questions on topics such as utilities, tax, MORTGAGE, and rent payments; place of birth; ethnic origin; and work habits. From March to June 1990, census workers continued the data collection. The bureau set aside March 20, 1990, as homeless night. On that night, census takers, many hired from among the homeless popula- tion or those who worked with them, visited shelters and low-cost motels from 6:00 p.m. to midnight; counted homeless people on the streets from 2:00 a.m. to 4:00 a.m.; and from 4:00 a.m. to 6:30 a.m. stood outside abandoned buildings, counting those who emerged. The homeless count caused a great deal of controversy. The 1990 census reported 228,600 homeless persons in the United States, com- pared with earlier estimates of 500,000 to 3 million. Advocates for homeless persons argued that the Census Bureau had surveyed only one- third of the country’s cities and counties and had visited only a limited number of locations. The bureau acknowledged that its workers had avoided actually going into hideaways such as abandoned buildings and dumpsters because of safety concerns and admitted that many winter shelters had closed by the time the census was taken in late March. The bureau maintained that its homeless survey was not intended to produce a definitive count of the homeless population. In October 1990 the Census Bureau issued estimated U.S. population figures of approxi- mately 254 million, based on a tracking of birth, death, and immigration records. In December the bureau released a final U.S. population tally of some 249 million, based on the actual mailed census questionnaires and house-to-house interviews. The discrepancy between the two sets of numbers indicated that the 1990 census missed some five million U.S. residents. By December 31, 1990, the bureau reported to the president population figures for each state as well as the number of seats in the U.S. House of Representatives that each state would receive. Between January and March 1991, states with early deadlines for redrawing legislative districts received totals of all persons of voting age, broken down by race. By April 1, 1991, most other states received the voting age and race data. Between April 1991 and 1993, the Census Bureau released statistics compiled from the long forms, including information on income, marital statu s, disabilities, types of housing, and education. In April 1991 the bureau announced the results of its PES. Estimates drawn from the PES revealed that the census had resulted in a national undercount of 2.1 percent, or approxi- mately 5.3 million persons out of a total population of approximately 255 million, the largest undercounting in the history of the census. For example, in one south central Los Angeles neighborhood, officials determined that census takers had underreported the number of occupants in 38 percent of 5,800 households. As expected, the undercount was greater for mem- bers of racial and ethnic minorities. Hispanics were undercounted by 5.2 percent, Native Americans by 5.0 percent, African Americans by 4.8 percent, and Asian Pacific Islanders by 3.1 percent. The PES-calculated undercount for non-African Americans was 1.7 percent and for non-Hispanic whites, 1.2 percent. Among major cities with high undercounts were Los Angeles (5.1 percent), Houston (5 percent), Washington, D.C. (5 percent), Dallas (4.8 percent), Miami (4.6 percent), Detroit (3.5 percent), and New York (3 percent). Among the reasons given for the low counts were that certain segments of the population did not believe the Census Bureau’s promise that information is confidential and will not be shared with other government agencies such as the Immigration and Naturalization Service (INS), the local housing authority, or the police; did not have addresses and thus were missed because the 1990 census was conducted pri- marily by mail; lived in urban high-crime areas where census takers were afraid to go door-to- door; were illegal immigrants; feared the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CENSUS 305 government in general; or lacked proficiency in English. According to the bureau, if the adjusted count were adopted, Arizona and California would each gain a seat in the House of Representatives and Wisconsin and Pennsylva- nia would each lose one seat. These disc repan- cies led state officials to renew their PLEA for an adjustment of the census using the PES. In July 1991 Secretary of Commerce Robert A. Mosbacher announced his decision not to adjust the 1990 census to account for the estimated five million people undercounted by the census. Mosbacher said that although he was troubled by the undercount of minorities, his decision supported the integrity of the census and that the resulting disadvantage to minorities should not be remedied in the official census. He also expressed concern that adjustment might not improve distribution of representatives among the states and that uncertainty as to the methods of adjustment and assu mptions behind them might cause even more dispute about the accuracy of the census. The plaintiffs in Wisconsin v. City of New York (517 U.S. 1, 116 S. Ct. 1091, 134 L. Ed. 2d 167 [1996]) attacked the secretary’s decision, contending that it was tainted by partisan political influence and violated the Constitu- tion, the ADMINISTRATIVE PROCEDURE ACT OF 1946, and the 1989 stipulation agreed to by both parties in the case. After a 13-day bench (non-jury) trial, the district court concluded that it could not overturn the secretary’s decision (City of New York, 822 F. Supp. 906 [E.D.N.Y. 1993]). On appeal, the court of appeals conclud- ed that, given the admittedly greater accuracy of the adjusted count, the secretary’s decision was not entitled to be upheld without a showing by the secretary that the refusal to adjust the census was essential to the achievement of a legitimate government objective (City of New York, 34 F.3d 1114 [2d Cir. 1994]). On appeal, the Supreme Court reversed the decision of the Second Circuit, holding that the secretary’s decision not to adjust the census was within the ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. SOURCE: U.S. Census Bureau, National Population Projections, based on Census 2000. PROJECTED POPULATION OF THE UNITED STATES, BY RACE a Percentage of population 0.0 10.0 20.0 30.0 40.0 50.0 60.0 70.0 White Black American Indian, Alaska Native Asian, Native Hawaiian, other Pacific Islander Hispanic Origin 2010 a Projected totals for each given year may not add to 100 because graph does not account for persons of more than one race. 64.7 12.2 0.8 4.7 15.8 2015 62.4 12.3 0.8 5.1 17.4 2020 5.5 60.1 12.3 0.8 19.1 2025 5.9 57.8 12.2 0.8 20.8 Census GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 306 CENSUS government’s discretion (___ U.S. ___, 134 L. Ed. 2d 167, 116 S. Ct. 1091 [1996]). By October 1991 at least five state legisla- tures had fil ed requests under the FREEDOM OF INFORMATION ACT (FOIA) (5 U.S.C.A. § 552 et seq.) to see the adjusted census figures in order to decide which set of numbers should be used to redraw state politic al boundaries. Secretary Mosbacher refused to make the adjusted numbers public, claiming they were flawed and their release could disrupt the redistricting process. In Assembly of California v. United States Department of Commerce (797 F. Supp. 1554 [E.D. Cal. 1992]), California state officials brought an action under the FOIA to enjoin the Commerce Department from withholding computer tapes containing statistically adjusted census data for California. The department claimed that the information was protected from disclosure under an exemption to the FOIA. But the district court said the exemption did not apply to the census data and ordered the Commerce Department to releas e the tape s. The court of appeals affirmed the district court’s order to release the tapes (Assembly of California, 968 F.2d 916 [9th Cir. 1992]). In a similar case, the U.S. Court of Appeals for the Eleventh Circuit reached the opposite result. In Florida House of Representatives v. United States Department of Commerce (961 F.2d 941 [11th Cir. 1992]), the Florida House of Representatives brought a FOIA action to compel the Commerce Department to release all the adjusted census data for Florida. The district court granted SUMMARY JUDGMENT for Florida and the Commerce Department appealed (Florida House of Representatives, No. TCA 91-40387-WS [N.D. Fla. 1992]). The Eleventh Circuit reversed, finding that the census data were exempted from disclosure under the FOIA. The U.S. Supreme Court declined to review the case (Florida House of Representatives, 506 U.S. 969, 113 S. Ct. 446, 121 L. Ed. 2d 363 [1992]). In light of the controversy over the 1990 census, government officials and demographers debated how best to conduct the census in 2000 and later. Many demographers argued that the U.S. population had become too mobile and too uncooperative to allow reliance on mail-in- surveys and door-to-door interviews. An increase in the number of non-English speakers, un- documented immigrants, and homeless persons makes census taking more difficult and resi- dents will become more diverse and less tolerant of government intrusion in the future. The American Statistical Association urged the government to use scientific sampling surveys to estimate the population that has been the most difficult to count. In preparation for the 2000 census, the bureau conducted a test census in the spring of 1995 at three sites—Paterson, New Jersey; Oakland, California; and six parishes in north- western Louisiana. The sites were selected because of their ethnic diversity and their large number of multi-dwelling housing units. In Paterson, the bureau experimented with a multimedia kiosk, which allowed residents to answer census questions by touching a screen. In Oakland, all identified households were sent a census form and blank forms were also made available at libraries, post offices, and the state DEPARTMENT OF MOTOR VEHICLES. The bureau also experimented with using statistical samples from random surveys to estimate total population. From these test projects the Census Bureau announced that it would use statistical sampling to take into account historically undercounted populations. These populations includ ed mi- norities, renters, children, poor persons, and illegal ALIENS. Although the American Statistical Association supported this approach as a valid methodology, the announcement set of f a political firestorm. Congressional Republicans, worried that sampling would lead to congres- sional APPORTIONMENT that favored the DEMO- CRATIC PARTY , filed a lawsuit challenging the constitutionality of the proposed practice. The Supreme Court, in Commerce Dept. v. U.S. House of Representatives (525 U.S. 316, 119 S.Ct.765, 142 L. Ed. 2d 797 [1999]), ruled, in a 5–4 decision, against the use of statistical sampling, holding that the 1976 amendments to the Census Act (1954) prohibit the use of statistical sampling for purposes of population head counts. Justice Sandra Day O’Connor, writing for the majority, stated that there had been over two hundred years of history “during which federal census statutes have uniformly prohibited using statistical sampling for con- gressional apportionment.” The 2000 census revealed that the U.S. population had grown to approximately 281 million. There was little public controversy over the results, a sharp contrast to the 1990 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CENSUS 307 . for persons of more than one race. 64.7 12. 2 0.8 4.7 15.8 20 15 62. 4 12. 3 0.8 5.1 17.4 20 20 5.5 60.1 12. 3 0.8 19.1 20 25 5.9 57.8 12. 2 0.8 20 .8 Census GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 306. passed 65 to 22 on December 2, 1954. Robert Torricelli (D-N.J.) was found guilty in 20 02 of taking illegal gifts and cash payments GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 3 02 CENSURE from. examination of the law on all issues. A month later, the Court in Ashcroft v. Free Speech Coalition, 535 U.S. 23 4, 122 S. Ct. 1389, 1 52 L. Ed. 2d 403 (20 02) ruled that the definition of “child