termined by accidents of geography (i.e., by where they live). In addition, they have suggested, whatever the theoretical arguments in favor of state involvement, the unhappy record of the states throughout American history in failing to safeguard rights justifies lodging this responsibility in the federal govern

ment.

Undeniably, these arguments for an interstate uniformity of rights and for the protection of those rights by the national government have considerable force. However, they are hardly the whole story. There are important reasons rooted in American constitutional history and constitutional theory, as well as in the nature of American federalism, for state participation in defining and protecting rights.

Before elaborating those reasons, however, one might note the implications of the argument for an interstate uniformity in rights. That argument, if generalized, would justify the elimination of virtually all policymaking by the states. For if one's rights should not depend on "accidents of geography," neither presumably should the availability of any other important benefit or service provided by government. However, Americans have long accepted some state autonomy and a degree of diversity in the provision of benefits and services because we believe that, on balance, the system of federalism that permits such autonomy and diversity is a good system.10 This, of course, hardly proves that there should be interstate differences in rights. Although we welcome diversity in some matters, in others we have opted for national uniformity. Nonetheless, it does suggest that the mere fact of interstate diversity is not, in and of itself, a sufficient argument against participation in protecting rights.

The broader argument in favor of state participation in defining and protecting rights begins with the recognition that such involvement is no innovation but rather an established feature of American constitutionalism.11 Even before the adoption of the federal Constitution, several states had assumed this responsibility by prefacing their constitutions with bills of rights. Other states inserted protections for rights in the body of their charters. As initially proposed, the federal Constitution largely left the task of protecting rights in state hands, since it did not include a bill of rights. Even when Antifederalist complaints led to the addition of a bill of rights, the First Congress made clear that state declarations of rights could and should continue to provide protection by rejecting a proposal that guaranteed various rights against state infringement. Since then, all 50 states have included bills of rights in their constitutions and also have acted to secure rights through statutes and judicial rulings. Although the Fourteenth Amendment to the U.S. Constitution was designed to augment federal power to prevent state violations of rights, the amendment was meant to supplement, rather than to preempt, state protections. Thus, as a matter of constitutional design, the states have from the outset

been encouraged to participate in defining and securing rights, and throughout the nation's history they have done so.

Yet in encouraging the states to define and protect rights, the nation almost inevitably committed itself to an interstate diversity in rights. Even at the time the federal Constitution was adopted, there were important differences in the rights enjoying constitutional protection in the various states.12 Although one might have expected the adoption of the federal Bill of Rights to promote interstate uniformity by providing a model for emulation, in fact this has not occurred. In some instances, the states have looked to the federal Constitution for direction: for example, 33 states have adopted constitutional provisions that parallel the Second Amendment by tying the right to bear arms to the need for a "well-regulated militia."13 But more frequently the states have looked to their sister states rather than to the national government for guidance: 30 states, for example, have modeled constitutional protections on the Virginia Constitution's declaration that “all men are born equally free and independent."14 Moreover, whereas the federal Constitution has been amended only infrequently to secure rights beyond those contained in the Bill of Rights, the states have not hesitated to amend their constitutions to recognize new rights or to extend protection against new threats to rights. Between 1968 and 1976, for example, 16 states adopted constitutional guarantees of gender equality. 15 Finally, as Table 1 demonstrates, several states have adopted protections for rights that lack any analogue in the U.S. Constitution.

The diversity of rights protected by the various states and the addition of new protections by constitutional amendment suggest that the states have often been responsive to their citizens' demands for the protection of rights not secured by the federal Constitution. In addition, the states' inventiveness in discovering rights, as well as the willingness of states to seek guidance from their sister states, underlines a major advantage of permitting states to contribute to the definition and protection of rights. Requiring a uniformity in rights from state to state would prevent the states from performing their historic function as incubators of political change. If uniformity is required, it will necessarily mean adherence to the "lowest common denominator" that is acceptable nationally. 16 If, however, each state is permitted to pursue its own course, within the limits imposed by the federal Constitution, then the states' experiments can contribute to our national understanding of rights. Indeed, American history confirms the importance of state leadership in the recognition and protection of rights. See Table 2.

Yet, ultimately, the fear remains that if each state can follow its own path, basic rights might be

Table 2

Selected State Initiatives in Protecting Rights Press Shield Laws: 18 states enacted press shield laws prior to the U.S. Supreme Court's decision in Branzburg v. Hayes (1972), which rejected claims that the First Amendment protects reporters from having to divulge their sources. After the Supreme Court's decision, another seven states extended protection to reporters.

Right to Counsel: 35 states provided counsel to indigent defendants in felony cases prior to the U.S. Supreme Court imposing the requirement on the states in Gideon v. Wainwright (1963). The Wisconsin Supreme Court imposed the requirement in Carpenter v. Dane (1850), over a century before Gideon.

Exclusionary Rule: The exclusionary rule bars the use of

illegally seized evidence in criminal prosecutions. The Iowa Supreme Court adopted the exclusionary rule in State v. Sheridan (1903), 11 years before the U.S. Supreme Court in Weeks v. United States (1914) imposed the rule in federal prosecutions. By the time the U.S. Supreme Court imposed the rule as a requirement in state prosecutions, 23 states had adopted the exclusionary rule as a matter of state law.

Equal Pay Provisions: Equal pay provisions forbid wage discrimination on the basis of sex. Before Congress enacted an equal pay law in 1963, 19 states had enacted similar laws.

Fair Housing Legislation: Fair housing legislation prohibits discrimination on the basis of race in the sale

or rental of housing. Before Congress enacted a fair housing law in 1968, 17 states had enacted similar laws.

jeopardized. Admittedly, there is some historical warrant for this concern. But this concern is less justified in the contemporary political and legal context. As noted in chapter 1, judicial decisions, federal legislation, and intrastate political developments have all combined to make state political systems more representative than in the past. Partially as a result of this, instances of blatant suppression of minority rights are rare. The civil liberties agenda in the states instead tends to be rather different. The states today are more likely to be called on to establish the proper balance when rights seem in conflict-for example, when press claims of freedom of access to pretrial proceedings collide with the right to privacy or the right to a fair trial.17 Or states may be asked to balance the competing claims of equality and local autonomy, as in school finance or zoning litigation. 18 Thus, the civil liberties issues that the states are addressing today seldom involve whether basic rights should be protected. At the same time, the complexity of these new issues underlines the advantage of allowing various political and judicial bodies in a multiplicity of jurisdictions to contribute their thoughts on how these issues should be resolved.

Finally, it should be remembered that the incorporation of various guarantees of the U.S. Bill of Rights and the passage of federal civil liberties legislation have, in effect, established a "floor" of basic rights that cannot be infringed. This has not ended state experimentation, nor was it meant to. However, the existence of this "floor" has had the effect of channeling states' experiments in the direction of expanding and safeguarding, rather than violating, rights. Thus, state involvement in defining and securing rights should not jeopardize fundamental rights. Freedom of Speech

under State Constitutions

Every state bill of rights guarantees the freedoms of speech and of the press. 19 During the 19th century, moreover, state rulings interpreting these provisions provided the main body of judicial doctrine on freedom of expression.20 However, when the U.S. Supreme Court began to address First Amendment issues during the early 20th century, doctrinal debate on the Court quickly detached itself from the body of state cases, pursuing arguments and directions unanticipated by the state courts. Over time the U.S. Supreme Court developed an impressive body of case law, and its decisions spawned a vast scholarly literature. Thus, in the early 1970s, when state courts began once again to address speech and press questions under their state constitutions, they confronted a well developed and highly sophisticated body of legal doctrine.

In such circumstances, one would expect state courts to rely heavily on federal law and precedent rather than to chart their own independent constitu

tional course. This has occurred. Yet even where federal law predominates, state law can make important contributions where (1) the national government has left issues to the states for resolution, (2) the national government has failed to provide adequate protection for rights, and/or (3) distinctive state constitutional provisions afford protection beyond that available under the federal Constitution.

Private Abridgements of Free Speech

By its very terms, the First Amendment protects the freedom of speech only against congressional abridgement. As a result of incorporation, the fcderal Constitution is now understood to prohibit state infringements on First Amendment rights; however, private limitations of expression remain outside its purview.21 The U.S. Supreme Court has recognized that in certain limited circumstances, namely, when private entities are performing public functions, they too are engaged in "state action” and are thus subject to federal constitutional constraints.22 Nonetheless, the U.S. Supreme Court has read this "public function" exception narrowly. In particular, it has concluded that although privately owned shopping centers may resemble traditional downtown shopping areas, this does not mean that they are performing a "public function." As a result, shopping center owners do not violate the First Amendment when they restrict or forbid speech on their premises.23

The U.S. Supreme Court's rulings, however, are not the final word on the subject. Although the U.S. Constitution does not secure a right to speak on private property, neither does it accord property owners a right to exclude speakers. Rather, it allows the states-through their statutory, constitutional, and common law-to define the scope of property rights and to regulate the use of private property in the public interest.24 Put differently, the states remain free to balance, as they see fit, the competing claims of speakers seeking access and of property owners seeking to restrict speech on their property.

In striking this balance, the states must determine whether their constitutional protections for free speech are directly applicable to private restrictions on speech. Despite variations, what is striking about state guarantees is that many do not merely echo the First Amendment's ban on governmental infringements on the freedom of speech. The Michigan Constitution, for example, states: "Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press."25 Whereas, the second clause of this provision, like the First Amendment, bars governmental interference with the freedom of speech, the first does not mention government. Instead, it announces a positive

right of free speech, albeit one subject to regulation to prevent abuse. In determining the scope of speech rights under state law, then, the states must consider whether this affirmative right of free speech extends beyond the prohibition of governmental infringements on the right to speak-that is, beyond state action-and requires that speakers be accorded access to private property to convey their messages. In reaching this determination, however, the states must also take account of state constitutional protections for property rights and, more specifically, of constitutional requirements that they neither take nor damage property without compensation.26

Within the past decade, several states have addressed directly the issue of speech rights on private property. The seminal case is Robins v. Pruneyard Shopping Center (1979), in which the California Supreme Court upheld Robins' right to collect signatures in a privately owned shopping center for a petition protesting the United Nations' anti-Zionism resolution.27 The California high court noted that the federal due process clause does not preclude the states from regulating the uses of private property in the public interest. It also asserted that the affirmative endorsement of freedom of speech in the state constitution signals a strong public interest that can, at least in some circumstances, override the claims of property owners. More specifically, the court observed that Robins' solicitation of signatures for his petition neither interfered with the normal business operations of the mall nor diluted property rights. It concluded therefore that he was entitled to protection under the state constitution.

When the U.S. Supreme Court unanimously upheld the California court's ruling in Pruneyard, similar cases were filed in several other states.28 Because the affirmative recognition of speech rights in state constitutions is accompanied typically by an "abuse" limitation, the courts in these states-like the California court in Pruneyard-have had to consider whether speakers had interfered with the legitimate claims of property owners. This necessarily required state judges to develop standards for applying the distinctive state guarantees. Some courts made impressive strides in this endeavor. For example, in overturning the trespass conviction of a member of the United States Labor Party who distributed leaflets on the campus of Princeton University without permission, the New Jersey Supreme Court in New Jersey v. Schmid (1980) considered carefully both the nature of the private property on which Schmid intruded and the extent to which Schmid's expression interfered with-or, as in this case, promoted-the purposes to which the property was dedicated. Similarly, in upholding an environmental group's right to collect signatures and demonstrate in a shopping mall, the plurality opinion for the Washington Supreme Court

However, not all state jurists have concluded that their constitutions afford speakers a right to convey their messages on private property. Several of the decisions extending protection against private abridgment of speech have provoked sharp dissents from justices who found a “state action” requirement implicit in the state's bill of rights. Since 1984, courts in Connecticut, Michigan, and New York have all endorsed the dissenters' position.30 Moreover, even those states that have extended constitutional protection against private restrictions on speech have found it difficult to strike a balance between the rights of speakers and those of property owners.31

Yet, the fact that one encounters interstateand even intrastate-disagreements about the interpretation and application of state constitutional provisions is hardly surprising. Rather, it would be surprising if every state, having recognized that its constitution affords independent protection for rights, interpreted its constitutional guarantees in exactly the same way. Moreover, the diversity of interpretation that results from our system of federalism should be viewed as a strength rather than a weakness. This diversity encourages an interstate dialogue about the scope of individual liberties that can promote thoughtful, informed decisions.32 As state judges consider in new contexts the meaning of their state's distinctive constitutional guarantees-for example, the "abuse" limitations on the freedom of speech found in several state constitutions-and begin to develop a state jurisprudence of free speech, they will undoubtedly benefit from the exchange of views with their colleagues on other courts that is promoted by state protection of civil liberties.33

Freedom of the Press

under State Constitutions

its

In general, witnesses must answer all pertinent questions put to them during grand jury investigations and/or trials: those who fail to do so may be punished for contempt. However, exceptions to this requirement have been recognized, when enforcement would imperil certain confidential relationships, such as those between doctor and patient or between priest and parishioner. Journalists have contended that the relationship between reporters and their confidential news sources warrants similar protection. They insist that because confidential sources often are willing to provide information only if their identities can remain secret, compelling reporters to name their sources and/or testify about the information they receive impedes the gathering of news and its transmission to the public. Whatever the

validity of this claim, it has not prompted creation of a federal testimonial privilege for reporters. In 1972, the U.S. Supreme Court concluded that the First Amendment does not protect journalists who refuse either to testify or to divulge their sources to grand juries. Subsequent efforts in Congress to enact a press shield law have also proved unavailing.34

Perhaps because state courts handle the vast majority of criminal cases, the states had begun to address the issue of a testimonial privilege for reporters long before it emerged on the federal political and legal agendas.35 In 1896, Maryland enacted the nation's first press shield law, granting a limited testimonial immunity to reporters. A series of highly publicized disputes during the 1930s prompted renewed attention to the issue of testimonial immunity, leading ten additional states to adopt shield laws. During the 1960s and early 1970s, seven more states passed shield laws, in part in response to complaints about the increased issuance of subpoenas to reporters. Finally, when the U.S. Supreme Court ruled that the First Amendment does not excuse reporters from testifying, seven more states responded by extending protection to reporters.

This is not to say that the states have adopted uniform policies on reportorial privilege. Not all states accord a testimonial privilege to journalists, and even those that do still differ over who is entitled to the privilege and over what the privilege entails. Some states, such as California, have protected reporters against contempt citations but not against charges of obstruction of justice or against directed verdicts in libel cases. Other states, among them Arizona and Ohio, authorize reporters to withhold only the names of sources, whereas others, such as Delaware and Michigan, allow reporters to protect both their sources and the information they receive. Finally, some states afford protection only to professional journalists connected with the formal news media, but others extend protection to freelancers and other persons engaged in news gathering or research.

Even within individual states, significant changes have occurred over time in the protection afforded to reporters. In several states, the scope of press privileges has emerged through interaction between the legislature and the courts, with legislators responding to narrowing constructions of press shield laws by extending broader protection. For example, on three separate occasions, the New Jersey legislature amended the state's shield law in response to judicial rulings that had construed it narrowly.36 After California's courts repeatedly had narrowed the scope of the state's shield law, the citizens responded by amending the California Constitution to give constitutional protection to reporters' testimonial privilegc.37

Our survey of state responses to claims of reportorial privilege leads to three general observations. First, by the time civil liberties issues emerge as part of the nation's political and legal agendas, oftentimes (as was the case with press shield laws) the states had addressed the issues and confronted the difficult task of defining the scope of those liberties. This, in turn, suggests that the federal government can-and should-profit from the example and experience of the states.38 Again, this underlines how the nation's federal system promotes a beneficial dialogue on civil liberties issues.

Second, the willingness of state legislatures to enact press shield laws and to repudiate narrowing judicial constructions of them confirms that state statutory law, as well as state constitutional law, can provide important safeguards for civil liberties.

Finally, the recent flurry of cases involving the state constitutional right of reporters to gain access to pretrial hearings suggests that both state legislatures and state courts will continue to be involved in addressing the right of journalists to obtain information controlled by government.39

Church and State in the States

The Constitutional Context

The absence of federal law has afforded states the opportunity to define rights on private property and to protect the confidentiality of reporters' sources. However, the role of state civil liberties law is not merely interstitial. The states can pursue an independent legal course and make a substantial contribution even when there is a body of federal law bearing on an issue. A prime example of such state independence is to be found in the constitutional law of church and state.40

Prior to the Supreme Court's incorporation of the establishment clause in 1947, the states had primary responsibility for regulating the relationship between church and state. Incorporation inaugurated a new era of federal judicial involvement and doctrinal development. Yet, this increased federal activity has not diminished the importance of state constitutional guarantees. Although both federal and state charters enforce some degree of separation between church and state, state bills of rights typically have avoided the apparent vagueness of the First Amendment's ban on laws "respecting an establishment of religion." Instead, most state constitutions contain specific and detailed provisions governing the relationship between church and state. These provisions, when considered in light of the controversies that engendered them, amply justify an independent state jurisprudence.

Generally speaking, state constitution-making on church and state has occurred in two phases. The first phase commenced after independence, when

the original states had to determine whether to maintain their existing religious establishments. Although most did not immediately eliminate their establishments, independence triggered a movement toward disestablishment, best exemplified by the famous campaign for religious liberty in Virginia. This movement found expression in early state constitutional provisions guaranteeing freedom of conscience and prohibiting preference to any religious sect. None of the states subsequently admitted to the Union created a religious establishment, and by the 1830s intrastate pressures, as well as the federal example, led the original states to eliminate the last vestiges of their official establishments. As those states adopted new constitutions or amended their old one, they used the occasion to remove outdated provisions recognizing religious establishments from their fundamental law.

Despite the elimination of official establishments, many states continued to provide unofficial support to Protestant Christianity, particularly in the public schools. As long as the nation's population remained relatively homogeneous religiously, this support produced little controversy. However, the immigration to America of large numbers of Roman Catholics, who objected to this "Protestantizing" of public education, prompted a second phase of state constitution-making. In response to Catholic demands for state funding of their schools and for the elimination of Protestant religious practices in public schools, several states strengthened their constitutional bans on aid to religious institutions and their mandates that school funds be expended only for public schools. Other states responded to the controversy by adding similar provisions to their constitutions. Finally, several states that were settled later or that escaped sectarian conflict over public education nonetheless borrowed the strict constitutional language of their sister states. As a result, long before the federal courts addressed the issue, most state constitutions had recorded a considered constitutional judgment on aid to religious institutions. In fact, their emphatic and detailed prohibitions of such aid appear to justify a separationist reading that may yield results different from those obtained under the First Amendment.

Aid to Parochial Schools

Given the specificity of these state constitutional prohibitions, it is hardly surprising that few cases have arisen involving direct aid to religious schools and that state courts have consistently struck down such aid as unconstitutional.41 State cases since World War II have focused instead on indirect aid to religious schools and their students, such as the provision of transportation or textbooks to children attending parochial schools. While the U.S. Supreme Court has ruled that such programs do not violate the First Amendment,42 the states have divided over