suspect consents, even if the police neglect to in-
form the suspect that he or she is free to go after the
stop. Likewise, inFlorida v. Bostick(1991), the Court
found that passengers on a bus could validly consent
to have their luggage searched by police who board
the bus as part of an antidrug campaign. As to con-
fessions, inArizona v. Fulminante(1991) the Court
found that when a Federal Bureau of Investigation
(FBI) informant obtained a confession from a fellow
prisoner in exchange for protection from other in-
mates who had been threatening him with bodily
harm, that confession was obtained in violation of
the Fifth Amendment because of the fear of physical
violence.
The Court in the 1990’s made several decisions
involving application of the Eighth Amendment
prohibition against cruel and unusual punishment
to death penalty cases. InPayne v. Tennessee(1991),
the Court overruled two earlier precedents to allow
friends and relatives of murder victims to testify at
the penalty stage of the bifurcated two-stage capital
trial as to the impact of the killing on their lives. In
McCleskey v. Zant(1991), the Court refused to grant a
writ of federal habeas corpus to a prisoner on death
row because he had not presented his claims in an
earlier petition, which was now exhausted. The de-
fendant was executed a few months later. Likewise,
inHerrera v. Collins(1993), the Court rejected an-
other petition for federal habeas corpus relief of a
Texas murder convict who claimed newly discovered
evidence demonstrated his innocence. The Court,
noting that all trials, motions, and appeals in the
cases had already been concluded, rejected the peti-
tion. In one of the few 1990’s Supreme Court capital
punishment cases deciding in favor of the defen-
dant,Dawson v. Delaware(1992), the Court held that
prejudicial evidence concerning the beliefs and
statements of a convicted murderer could not be in-
troduced by the state in the penalty phase of the bi-
furcated two-stage capital trial.
The First Amendment As with previous decades,
the 1990’s saw the Supreme Court make significant
decisions concerning the First Amendment rights to
free speech and free exercise of religion. InBarnes v.
Glen Theatre, Inc.(1991), the Court rejected the
claim that Indiana’s law prohibiting totally nude
dancing in public establishments violated the right
to free speech, thereby finding that the states re-
tained some right to enact public indecency statutes.
The Court held that states can have a legitimate in-
terest in proscribing public nudity but are prohib-
ited from regulating dancing any further than that
limit. Likewise, inOsborne v. Ohio(1990), the Court
upheld an Ohio statute prohibiting private posses-
sion of child pornography, as a state can act so as to
protect minors without violating the constitutional
right for adults to view sexually explicit material.
Although the Court expanded the states’ ability
to prohibit obscene speech, in a controversial case it
seemed to limit Congress’s power to do so. InReno v.
ACLU(1997), the Supreme Court found two provi-
sions of the federal Communications Decency Act of
1996 to be too vague to satisfy the free speech clause.
These provisions criminalized transmission of inde-
cent messages and displaying patently offensive mes-
sages over the Internet to any person under eigh-
teen years of age. However, the statute failed to
define “indecent” or “patently offensive,” as well as
suffering other defects, and thus was not narrowly
tailored so as to pass constitutional muster.
An important First Amendment free exercise
clause case with widespread consequences wasOre-
gon v. Smith(1990). InSmith, a member of a Native
American religion that made use of peyote for cere-
monial purposes was terminated from his job, as his
use of peyote was found to constitute drug abuse. In
upholding the termination, the Court found that
the free exercise clause cannot be used to invalidate
state laws prohibiting illegal activity that generally
and neutrally apply to all persons. In response to this
ruling, Congress passed the Religious Freedom Res-
toration Act to override certain portions of theSmith
decision. In response, inCity of Boerne v. Flores
(1997), the Court held the Religious Freedom Res-
toration Act to be an unconstitutional interference
by Congress with the powers of the Court. In con-
trast to theSmithcase is the Court’s decision in
Church of the Lukumi Babalu Aye v. Hialeah(1993),
striking down Florida’s prohibition of religious prac-
tices involving animal sacrifice.
A related First Amendment case was the Court’s
controversial decision regarding the establishment
clause inLee v. Weisman(1992). In that case, the
Court found that the First Amendment forbade any
prayers at a high school graduation, even if
nonsectarian, as coercive to students. This decision
was consistent with decades of Supreme Court estab-
lishment clause jurisprudence that vigilantly looked
to exclude religious intrusion from public schools.824 Supreme Court decisions The Nineties in America