CHAPTER 5

Civil Liberties

0OBJECTIVES
This chapter examines the ways in which the courts have interpreted the Bill of Rights. It focuses on the
First Amendment and on criminal due process concerns. After reading and reviewing the material in
this chapter, the student should be able to do each of the following:0
00. Discuss the relationship of the Bill of Rights to the concept of majority rule, and give examples of
tension between majority rule and minority rights.
00. 0Explain how the structure of the federal system affects the application of the Bill of Rights.
00. Describe how the Supreme Court has used the Fourteenth Amendment to expand coverage in the
federal system. Discuss changing conceptions of the due process clause of the Fourteenth
Amendment.
00. List the categories under which the Supreme Court may classify speech. Explain the distinction
between protected and unprotected speech, and name the various forms of expression that are not
protected under the First Amendment.
00. Explain the tension between the free exercise of religion and the establishment of religion
clauses of the First Amendment.
00. Describe the exclusionary rule remedy devised by the Supreme Court as it pertains to
unreasonable searches and seizures and coerced confessions.

0OVERVIEW
Like most issues, civil liberties problems often involve competing interestsin this case, conflicting
rights or conflicting rights and duties. Groups may mobilize to argue for their interests. Like some other
issues, civil liberties concerns can also arise from the successful appeals of a policy entrepreneur. These
appeals have sometimes restricted liberty, as when popular fears are aroused during or just after a war
or attack.
Civil liberties are foundational to political beliefs and political culture in the United States. Among the
most important protections are those in the First Amendment: What is speech? How much of it
should be free? How far can the state go in aiding religion? How do Americans strike a balance
between national security and personal expression? The zigzag course followed by the courts in judging
these matters has, on balance, tended to enlarge freedom of expression.
Also important has been the struggle to strike a balance between the right of society to protect itself
from criminals and the right of all people to be free from unreasonable searches and coerced
confessions. As with free speech cases, the courts have generally broadened the rights, this time at some
expense to the police. In more recent years, though, the Supreme Court has qualified some of its
exclusionary rule protections.

Chapter 5: Civil Liberties

The resolution of these issues by the courts is political in the sense that there are competing opinions
about what is right or desirable. In this competition of ideas and values, federal judges, though not
elected, are often sensitive to strong currents of popular opinion. When no strong national mood is
discernible, the opinions of elites influence judicial thinking.
At the same time, courts resolve political conflicts in a manner that differs in three important respects
from the resolution of conflicts by legislators and executives. First, the relative ease with which one can
enter a court facilitates challenges to accepted standards. An unpopular political or religious group may
have little or no access to a legislature, but it will have substantial access to the courts. Second, judges
often settle controversies about rights not simply by deciding the case at hand but by formulating a
general rule to cover other, similar cases. This means that the law tends to become more consistent and
better known, but the rules may also be inappropriately applied. For example, a definition of obscenity
or fighting words may suit one situation, but be inadequate in another. Third, judges interpret the
Constitution, whereas legislatures often consult popular preferences or personal convictions. Still,
though their own beliefs influence how judges read the Constitution, its language constrains almost all
of their decisions.
Taken together, the desire to find and announce rules, the language of the Constitution, and the personal
beliefs of judges have led to a general expansion of civil liberties. As a result, even allowing for
temporary reversals and frequent redefinitions, any value that is thought to hinder freedom of
expression and the rights of the accused has generally lost ground to the claims of the First, Fourth,
Fifth, and Sixth Amendments.

0CHAPTER OUTLINE WITH KEYED-IN RESOURCES 0

0.

0.

The politics of civil liberties0

0. The Framers believed that the Constitution limited governmentwhat was not specifically
allowed was obviously not allowed0
0. States ratifying constitutions demanded the addition of the Bill of Rights.
00. 0Bill of Rights seen as specific restrictions on federal government actions
00. Bill of Rights not originally understood as applying to state government actions
0. Civil liberties: protections the Constitution provides against the abuse of government power
0. Civil rights: protecting certain groups against discrimination
0. In practice, no clear line between civil liberties and civil rights
Culture and civil liberties00
0. Rights in conflict
00. Constitution and Bill of Rights contain a list of competing rights and duties
0) Sheppard case (free press versus fair trial)
0) New York Times and the Pentagon Papers (common defense versus free press)
0) Kunz anti-Jewish speeches (free speech versus public order)
00. Struggles over rights follow a pattern similar to interest-group politics in economic
issues.
0. War has been the crisis that has most often restricted the liberty of some minority 0
00. Sedition Act of 1798, following the French Revolution
00. Espionage and Sedition Acts, directed against German Americans during World War I
00. Smith Act (1940): made it illegal to advocate the overthrow of the U.S. government

Chapter 5: Civil Liberties

0.

0.

00. Internal Security Act of 1950: required members of the Communist Party to register
with the government
00. Communist Control Act of 1954: declared the Communist Party to be part of a
conspiracy to overthrow the government
00. Supreme Court usually upheld this legislation, though its importance abated as war or
crisis passed
00. Some use is still made of sedition laws, although the Supreme Court has increasingly
protected political speech
Cultural conflicts0
00. Original settlement by white European Protestants meant that Americanism was
equated with their values.
00. Conflicts about the meaning of some constitutionally protected freedoms surround the
immigration of new ethnic, cultural, and/or religious0 groups.
0) Jews offended by crches at Christmas
0) English-speakers often prefer monolingual schools.
0) Gay men are prohibited from serving as Boy Scout troop leaders.
00. Differences even within a single cultural tradition (for example, pornography)
Applying the Bill of Rights to the states
00. Before Civil War, Constitution and Bill of Rights were understood to apply only to
federal governmentnot to state governments
00. Change began after Civil War with the Fourteenth Amendment (1868)
0) Due process clause: no state shall deprive any person of life, liberty or property
without due process of law
0) Equal protection clause: no state shall deny to any person within its jurisdiction
the equal protection of the laws
00. Supreme Court used these two clauses to apply certain rights to state governments
0) 1897: said no state could take private property without just compensation
0) 1925 (Gitlow): declared federal guarantees of free speech and free press also
applied to states
0) 1937 (Palko v. Connecticut): certain rights must apply to the states because they
are essential to ordered liberty and are fundamental to our system of justice
00. Decisions began the process of incorporation: applying some (but not all) federal
rights to the states
00. Bill of Rights is now generally applied to the states except for:
a0) Third Amendment: quartering troops
b0) Fifth Amendment: right to be indicted by grand jury
c0) Seventh Amendment: right to jury trial in civil cases
d0) Eighth Amendment: ban on excessive bail and fines
00. The Second Amendment that protects the right of the people to keep and bear arms
may or may not apply to the states.
In a 2008 case that arose in the District of Columbia, the Supreme Court ruled the
federal government did not have a right to ban the private possession of firearms.
Raises two questions:

Chapter 5: Civil Liberties

(1)Will the ban be incorporated, via the Fourteenth Amendment to the states?
Cases have arisen to test the issue.
(2) Will government still be able to regulate the purchase and use of guns?
Court precedents would suggest that the answer is yes.
0.

Interpreting and applying the First Amendment (THEME A: FIRST AMENDMENT RIGHTS)0
0. Speech and national security0
00. Blackstone: press should be free of prior restraint (censorship), but then must accept
the consequences if a publication is improper or illegal
00. Sedition Act of 1798 followed Blackstones view, with improvements0
0) Jury trial, not a judges decision
0) Defendant would be acquitted if it could be proved that information was truthful
00. Congress defines limits of expression: 1917180
0) Treason, insurrection, forcible resistance to federal laws, encouraging disloyalty
in the armed services not protected by the First Amendment
0) Upheld in Schenck (1919) via clear and present danger test (authored by Justice
Oliver Wendell Holmes)
0) Holmes dissented in cases that subsequently applied this test, believing that its
conditions had not been met.
00. Change in national-state relationship: Gitlow (1925)0
0) Supreme Court initially denied that due process clause made the Bill of Rights
applicable to the states.
0) Change occurred in Gitlow (1925), when due process clause was applied to
protect fundamental personal rights from infringement by the states
00. Supreme Court moved toward more free expression after World War I but with some
deference to Congress during times of crisis.0
0) Supreme Court upheld the convictions of Communists under the Smith Act.
0) By 1957, to be punished, the speaker must use words calculated to incite the
overthrow of the government.
0) By 1969 (Brandenburg), speech calling for illegal acts is protected, if the acts are
not imminent.
0) In 1977, American Nazi march in Jewish community is held to be lawful.
0) In 1992, Minnesota law that made it a crime to display hate symbols or objects
overturned
0. What is speech? Some kinds of speech are not fully protected.0
00. Libel: written statement defaming another by false statement0
0) Defamatory oral statement: slander
0) Author or publisher engaging in libel may be sued for civil damages
0) Public figures must show the words were written with actual malicewith
reckless disregard for the truth or with knowledge that the words were false.
00. Obscene materials may be regulated by the state.0
0) No enduring and comprehensive definition of obscenity
0) 1973 definition: judged by the average person, applying contemporary
community standards to appeal to the prurient interest or to depict in a

Chapter 5: Civil Liberties

0.

0.

patently offensive way, sexual conduct specifically defined by applicable state

law and lacking serious literary, artistic, political, or scientific value
0) Balancing competing claims remains a problem: freedom versus decency
0) Localities decide whether to tolerate pornography but must comply with strict
constitutional tests if they decide to regulate it.
0) Protection is extended to almost all forms of communication; for example, nude
dancing is marginally protected.
0) Court overruled Indianapolis statute: Court ruled the legislature cannot show
preference for one form of expression over another (women in positions of
equality versus women in positions of subordination)
0) Zoning ordinances for adult theaters and bookstores have been upheld: regulate
use of property rather than expression
0) Internet regulation ruled unconstitutional by the Supreme Court
00. Symbolic speech0
0) Cannot claim protection for an otherwise illegal act on the grounds that it
conveys a political message (for example, burning a draft card)
0) However, statutes cannot make certain types of symbolic speech illegal: for
example, flag burning is protected speech.
Commercial and Youthful Speech
0. Corporations and organizations usually have same rights as individuals.0
00. Corporations and interest groups have First Amendment rights.
00. Businesses that cater to vice also have First Amendment rights.
0. Restrictions can be placed on commercial speech (advertising); however, the regulation must
be narrowly tailored and serve the public interest.
0. McCain-Feingold campaign finance reform changed the parameters of acceptable political
speech for corporations and other organizations.
00. Organizations could not pay for electioneering communications that refer to a
specific candidate on radio or television sixty days before an election
00. Supreme Court upheld this law, saying ads that only mentioned, but did not expressly
advocate a candidate were ways of influencing the election0. Young people (minors) may
have less freedom of expression than adults0
00. Hazelwood (1988) allowed that a school newspaper can be restricted.
00. Private speech may be protected, but speech associated with school-sponsored
activities may be controlled if speech interferes with schools educational mission.
Church and state0
0. The free exercise clause0
00. Relatively clear meaning: no state interference, similar to speech0
0) Ensures that no law may impose particular burdens on religious institutions
0) Example: Hialeah, FL, cannot ban animal sacrifices by Santerians because killing
animals is not generally illegal.
00. But there are no religious exemptions from laws binding all other citizens, even if that
law oppresses a groups religious beliefs
00. Some conflicts between religious freedom and public policy continue to be difficult to
settle.0

Chapter 5: Civil Liberties

0.

0.

0) Conscientious objection to war, military service

0) Refusal to work Saturdays (Seventh-Day Adventists)
0) Refusal to send children to public school beyond eighth grade (Amish)
The establishment clause0
00. Jeffersons view: there is a wall of separation between church and state
00. Ambiguous phrasing of First Amendment requires Supreme Court interpretation.
00. Supreme Court interpretation: no governmental involvement, even if the involvement
would be nonpreferential0
0)
Case in New Jersey in 1947 allowed parents of Catholic schoolchildren to be
reimbursed for the cost of busing their children to schools because the busing business
is a religiously neutral activity
b)
Since 2000, it has been unconstitutional for a student to lead a prayer at a
public high school football game because the student was using public-address
equipment provided by the school, by a student body representative, under the
supervision of school faculty pursuant to school policy. However, in the same ruling the
Court made it clear that public school students could pray voluntarily during school
provided the school or government did not sponsor that prayer.

c0) The Court has since struck down school prayer, teaching of creationism in
public schools, in-school released time for religious instruction.
d0) Court has allowed certain kinds of aid to parochial schools and denominational
colleges.
e0) Court has also allowed voucher money to go to parochial schools, on the grounds
that the aid is going not to a specific school but rather to the families, who were
then free to choose a school.
f0) Government involvement in religious activities is constitutional if it meets the
following tests:0
(0)0 Secular purpose
(0)0 Primary effect neither advances nor inhibits religion
(0)0 No excessive government entanglement with religion
g0) Supreme Court rulings, however, remain complex and shifting in regard to the
establishment clause.
Crime and due process (THEME B: CRIMINAL DUE PROCESS)0
0. The exclusionary rule
00. The challenge of evidence in the courtroom
0) Most nations let all evidence into trial, later punishing any police misconduct.
0) United States excludes improperly obtained evidence from trial.0
00. Exclusionary rule: evidence gathered in violation of the Constitution cannot be used in
a trial
0) Implements the Fourth Amendment (freedom from unreasonable searches and
seizures) and the Fifth Amendment (protection against self-incrimination)
0) Mapp v. Ohio (1961): Supreme Court began to use the exclusionary rule to
enforce a variety of constitutional guarantees.
00. Search and seizure0
00. When can reasonable searches of individuals be made?0

Chapter 5: Civil Liberties

0)

0.

0.

0.

With a properly obtained search warrant: an order from a judge authorizing the
search of a place and describing what is to be searched and seized; judge can
issue only if there is probable cause
0) Incident to an arrest
00. What can the police search, incident to a lawful arrest?0
0) The individual being arrested
0) Things in plain view
0) Things or places under the immediate control of the individual
00. What about an arrest of someone in a car?0
0) Answer changes almost yearly
0) Recent cases have allowed police to search under more relaxed reasonable
suspicion standard.
00. Court attempts to protect a reasonable expectation of privacy.
Confessions and self-incrimination0
00. Constitutional ban originally was intended to prevent torture or coercion.
00. Extended to people who are unaware of their rights, particularly their right to remain
silent in both the courtroom and the police station0
0) Miranda case: confession presumed to be involuntary unless suspect fully
informed of rights
0) Protection does not apply if, while in jail, a suspect confesses a crime to another
inmate who turns out to be an undercover officer.
Relaxing the exclusionary rule0
00. Positions taken on the rule:0
0) Any evidence should be admissible
0) Exclusionary rule has become too technical to deter police misconduct
effectively.
0) Rule is a vital safeguard for liberties
00. Courts began to adopt the second position, allowing some exceptions to the rule0
0) Limited coverage (for example, police have greater freedom to question
juveniles)
0) Incorporation of the good-faith exception
0)
Overriding considerations of public safety may justify questioning people
without first reading them their rights.
0) Evidence that would inevitably have been found is admissible.
Terrorism and Civil Liberties0
00. USA Patriot Act meant to increase federal governments powers to combat terrorism0
0) Government may tap any telephone used by a suspect, rather than obtaining a
separate order for each phone.
0) Government may tap, with a court order, Internet communications.
0) Government may seize, with a court order, voice mail.
0) Investigators can share information learned in grand jury proceedings.
0) Any noncitizen may be held as a security risk for seven days, longer if certified to
be a security risk.
0) Federal government can track money across U.S. borders and among banks.

Chapter 5: Civil Liberties

0) Statute of limitations on terrorist crimes eliminated; penalties increased

00. Executive order then proclaimed a national emergency; noncitizen believed to be a
terrorist, or to have harbored a terrorist, will be tried by a military court0
0) Tried before a commission of military officers
0) Two-thirds vote of the commission to find the accused guilty
0) Suspect may appeal only to the secretary of defense or the president
00. Can the people the United States captures be held without giving them access to the
courts?
0) Traditional answer from World War II era: spies sent to this country were
unlawful combatants.
0) American citizens detained while working with the enemy (that is, the Taliban)
were entitled to hearing before neutral decision maker to challenge the basis for
their detention
(0)0 2006 law authorized military commissions to try alien enemy combatants
(0)0 Commission will be composed of at least five military officers.
(0)0 Defendants will be given certain fundamental rights, for example, see
evidence, testify
(0)0 Appeals presented to Court of Military Review, federal appeals court for
District of Columbia, then U.S. Supreme Court
(5) Recently, President Obama has ordered the closing of the Guantnamo Bay
prison. The problem: What do we do with the inmates? President George W.
Bush released 420 of 700. Fifty remain in the prison, with no country willing to
take them.
00. Patriot Act renewed in 2006; nearly all provisions were made permanent
00. Real ID Act requires all states to comply with federal standards when issuing drivers
licenses
00. Warrantless telephone taps allowed for foreign spies
0) Limited by Congress in 1978 (Foreign Intelligence Surveillance Act); president
must ask special court to approve electronic eavesdropping requests, but
evidentiary standard much lower than the standard for regular criminals
0) Federal courts in agreement that as commander in chief, president has inherent
authority to conduct warrantless searches to obtain foreign intelligence
information.
c)
In 2008, Congress passed a bill allowing the government to intercept foreign
communications with people in the United States, with the approval of the FISA
court.
d)

Private and Internet companies that aided in this were exempted from lawsuits, so
long as they received substantial evidence that the program was authorized by
the President.

0WEB RESOURCES
American Center for Law and Justice (ACLJ): www.aclj.org
American Civil Liberties Union (ACLU): www.aclu.org/

Chapter 5: Civil Liberties

Civil RightsCivil Liberties Law Review, Harvard Law School:

www.law.harvard.edu/Studorgs/crcl_lawreview
Oyez: U.S. Supreme Court Media: www.oyez.org
Supreme Court of the United States: www.supremecourtus.gov
U.S. Department of Justice: www.usdoj.gov/

0RESEARCH AND DISCUSSION TOPICS

How would you decide? Review cases pending before the Supreme Court and select one for a moot
court exercise in your classroom. Record the students statements. Then review the oral argument
conducted before the Court, comparing students insights with those of the attorneys and Supreme
Court justices. What are the strengths and weaknesses of each set of oral arguments? What are the
implications for the Courts rulings? For transcripts of oral arguments in the U.S. Supreme Court, see:
www.supremecourtus.gov/oral_arguments/argument_transcripts.html
Should the exclusionary rule be absolute? In recent years, the Supreme Court has allowed a number
of exceptions to the exclusionary rule, which are discussed in the text. Do students agree with these
exceptions? Why or why not? At what point does the need to prosecute wrongdoers begin to erode the
privacy of innocent citizens?
Should the president be able to suspend civil liberties for terror suspects? In the aftermath of 9/11,
the governments response to the terror attacks reveals a tension between the preservation of national
security and the preservation of fundamental civil liberties. Do you agree that the president, as
commander in chief, should be granted special powers to engage in secret surveillance of foreign
citizens without prior judicial approval? Should he be able to permit federal law-enforcement officers to
engage in similar secret surveillance practices against American citizens?

0IMPORTANT TERMS
clear and present
danger test

Law should not punish speech unless there is a clear and present danger of
producing harmful actions

due process of law

Denies the government the right, without due process, to deprive people of
life, liberty, and property

equal protection of
the law

A standard of equal treatment that must be observed by the government

establishment clause

First Amendment ban on laws respecting an establishment of religion

exclusionary rule

Improperly gathered evidence may not be introduced in a criminal trial

freedom of
expression

Right of people to speak, publish, and assemble

freedom of religion

People shall be free to exercise their religion; government may not establish a
religion

free-exercise clause

First Amendment requirement that law cannot prevent free exercise of

religion

Chapter 5: Civil Liberties

good-faith exception

An error in gathering evidence, with the error sufficiently minor that the
evidence may be used in a trial

libel

Writing that falsely injures another person

prior restraint

Censorship of a publication

probable cause

Reasonable cause for issuing a search warrant or making an arrest; more than
mere suspicion

search warrant

A judges order authorizing a search

selective
incorporation

Court cases that apply Bill of Rights to states

symbolic speech

An act that conveys a political message

wall of separation

Court ruling that government cannot be involved with religion

0THEME A: FIRST AMENDMENT RIGHTS

0Instructor Resources
Azizah Y. Al-Hibri and Jean Bethke Elshtain. Religion in American Public Life: Living with Our
Deepest Differences. New York: Norton, 2001.
Janine Bell. Policing Hatred: Law Enforcement, Civil Rights, and Hate Crime. Albany: State University
of New York Press, 2002.
Thomas C. Berg, ed. The Free Exercise of Religion Clause: The First Amendment (Bill of Rights).
Amherst, NY: Prometheus Books, 2007.
Paul S. Boyer, Purity in Print: Book Censorship in America from the Gilded Age to the Computer Age,
2nd ed. Madison: University of Wisconsin Press, 2002.
Alan Brownstein, ed. The Establishment Clause of Religion Clause: The First Amendment (Bill of
Rights). Amherst, NY: Prometheus Books, 2007.
Catharine Cookson. Regulating Religion: The Courts and the Free Exercise Clause. New York: Oxford
University Press, 2001.
Terry Eastland, ed. Freedom of Expression in the Supreme Court. Lanham, MD: Rowman & Littlefield,
2002.
Christopher L. Elsgruber and Lawrence G. Sager. Religious Freedom and the Constitution. Cambridge,
MA: Harvard University Press, 2007.
Robert Justin Goldstein. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence:
University Press of Kansas, 2000.
Carolyn N. Long. Religious Freedom and Indian Rights: The Case of Oregon v. Smith. Lawrence:
University Press of Kansas, 2000.
Paul Weithman. Religion and the Obligations of Citizenship. New York: Cambridge University Press,
2002.

Chapter 5: Civil Liberties

0Summary
During the 1960s, the Supreme Court began broadening the way in which constitutional rights are
interpreted. In the area of free expression, the First Amendment now guarantees virtually any form of
communication, with several exceptions. First, libelfalse statements that harm a persons reputation
remains unprotected, but it has been made more difficult to prove in certain situations. Public figures
must prove actual malice, an extremely heavy burden. A defamed person must establish that a statement
was uttered either in the knowledge that it was false or with reckless disregard for its accuracy. In 1991,
the Court went so far as to exclude fabricated quotations from the definition of libel as long as the
misquote did not materially change the meaning of what was actually said.
Obscenity is the second form of speech not protected under the First Amendment. The problem is that it
is not entirely clear what constitutes obscenity for constitutional purposes. The absence of a precise
definition has led to anomalies, as when the rap group 2 Live Crew was acquitted of obscenity in
Broward County, Florida, despite the conviction of a record store owner for selling albums in the same
county that contained the same songs. The Courts current Miller test of obscenity hardly articulates a
satisfactory standard for banning a particular kind of speech.
The third variety of speech rendered at least partially unprotected under the First Amendment is called
symbolic speech. Expression of this kind typically involves some type of illegal behavior designed to
communicate an idea. Speech expressed through conduct is frequently referred to as speech plus, the
plus being the conduct. Activities considered symbolic speech include demonstrating and marching,
pouring blood on army recruiting records, and wearing a black armband as a protest. Such speech is not
wholly without constitutional safeguard, but it is entitled to a lesser degree of protection. In the words
of Justice Arthur Goldberg, We emphatically reject the notion . . . that the First and Fourteenth
Amendments afford the same kind of freedom to those who would communicate ideas by conduct . . .
as these amendments afford to those who communicate ideas by pure speech (Cox v. Louisiana [I],
1965). Thomas Tedford summarizes the Supreme Courts position in determining whether behavior is
considered symbolic speech in the following way: (1) the speaker must have an intent to convey a
message; (1) the audience must be likely to understand the message; and (3) the speech must make a
contribution to the body of knowledge. The Court has allowed the government more latitude in
regulating the conduct associated with symbolic speech than the expressive content itself. Thus, the
government can punish the burning of a draft card as a form of protest, because its goal in making the
regulation is not to suppress the idea being communicated but to defend the nations security. On the
other hand, the government cannot forbid the burning of the American flag as a form of protest, because
the behavior does not threaten a breach of peace, making the suppression of an idea the only purpose
behind the law.
The fourth type of expression lacking complete constitutional protection is commercial speech. At first,
the Supreme Court placed commercial speech entirely outside the First Amendment (Valentine v.
Chrestensen, 1942) but eventually provided it with limited coverage: advertising, according to Justice
Harry Blackmun in Bigelow v. Virginia (1975), is not stripped of all First Amendment protection so
long as it is truthful and of value to the public. It is only when advertising is either deceptive or
involves an illegal or harmful product that commercial speech is subject to suppression or regulation.
The religion clauses of the First Amendment are caught in a similar web of confusion. The free exercise
clause was initially treated, as Leo Pfeffer says, as a stepchild of the free speech clause. Until the

Chapter 5: Civil Liberties

1960s, cases raising free exercise claims were typically decided on the basis of principles of free
speech. In Sherbert v. Verner (1963), the Court gave the free exercise clause an independent identity
and required the government to provide a compelling interest to justify any burden on the practice of
religion. The confusion enters through the manner in which this tough standard was implemented, with
the Court almost always deciding against the free exercise claim.
In 1988, a fatal blow to Sherbert was rendered in Employment Division v. Smith, in which the
compelling interest test was held inappropriate to criminal conduct. People can no longer rely on the
free exercise clause to exempt their behavior from a law of general applicability that is not designed
as an attack on a particular religion. In response to Smith, the Congress passed the Religious Freedom
Restoration Act (RFRA, 1993), which was explicitly intended to displace Smith and reinstate Sherberts
compelling interest test. In City of Boerne v. Flores, Archbishop of San Antonio (1997), however, the
Court ruled that the RFRA exceeded Congresss authority. The opinion, delivered by Justice Anthony
Kennedy, noted that Congress could properly enforce the constitutional right to free exercise of
religion, but that such enforcement could only be preventive or remedial. The RFRA, however,
involved the Congress in defining that right. As such, it contradicted the separation of powers. Second,
the RFRA was described as wildly out of proportion to a supposed remedial or preventive object:
All told, RFRA is a considerable congressional intrusion in the states traditional prerogatives and
general authority to regulate for the health and welfare of their citizens and is not designed to identify
and counteract state laws likely to be unconstitutional because of their treatment of religion. Thus the
RFRA also contravened federalism. The Smith standard has therefore been reinstated, though legal
scholars speculate about what additional actions Congress might take.
Many of the same problems haunt the establishment clause, which, Thomas Jefferson argued, is
intended to erect a wall of separation between church and state. It is generally agreed that the clause
forbids the establishment of an official religion and restricts the government from becoming involved in
religious matters, even on a nonpreferential basis. Beyond that, the meaning of the establishment clause
remains elusive. The Court in Lemon v. Kurtzman (1971) articulated a three-part test to determine
violations of the establishment clause: (1) the statute must have a legislative purpose that is secular; (2)
a government policy must have a primary effect that neither advances nor inhibits religion; and (3) a
government policy must not result in an excessive entanglement of church and state. These tests have
produced a great deal of uncertainty, to the point where the Supreme Court itself has strayed from
invoking the Lemon standards. In recent years, the Court has adopted a compromise position of sorts,
allowing some funding of religious programs as long as the government remains neutral in the process.
In Zelman v. Simmons-Harris (2002), for example, the Supreme Court upheld a program whereby the
government gave parents vouchers for school-age children that they could then redeem at a school of
their choice. Although parochial schools were included in the program, the Court concluded that
establishment clause had not been violated, because the educational choice was directed by the parent
not the government. Thus, it ruled that a law is presumed to be constitutional as long as the government
did not inhibit nor promote religious affairs.

0Discussion Questions0
00. Since the 1960s, the U.S. Supreme Court has extended free speech protections to include political
speech endorsing violent overthrow of the government. In light of the 9/11 attacks and the

Chapter 5: Civil Liberties

ongoing security threats posed by terrorists, should the Court continue to protect violent speech?
Or should the government restrict political views espoused by radical ideologues?
00. 0Should the definition of obscenity be broadened? Several studies have found that those who
commit sexual violence are likely to be consumers of pornography, and this has caused a number
of lawyers to argue that the protection of pornography is a violation of womens civil rights. What
is your thinking on the connections among obscenity, pornography, and sexual violence. Is this
issue properly understood as a matter of the viewers civil liberties or the victims civil rights?
What is the reasoning that supports your conclusion?
00. In 2006, the New York Times was widely criticized for exposing details about a secret government
program that tracked the financial activities of suspected terrorists while the operation was still in
effect. The Times claimed that the program was a matter of public interest and that the operation
was not jeopardized by the revelation of the details. In the past, the U.S. Supreme Court has
prohibited government attempts to censor publications; however, after the Times publication,
some critics alleged that the publishers actions were treasonable. Should the Court restrict the
publication of details regarding ongoing government operations? Should the standards vary
depending on the nations peacetime or wartime status?
00. Some historians have argued that the Founders never intended the First Amendment prohibition
against the establishment of religion to exclude religious speech or activities from the public
square. This is supported by the fact that many of our early customs, such as opening
congressional sessions with prayer by a government-funded chaplain, or engraving the Ten
Commandments on the faade of the U.S. Supreme Court building, were established without
controversy. Today, however, the federal courts have interpreted the establishment clause to mean
that government should never endorse or embrace a particular religious tradition. Do you think
that it is possible for the government to remain completely neutral with regard to religion? Should
the government engage in revisionist practices and remove religious references from founding
documents and public monuments in order to avoid giving the impression that it is endorsing or
promoting a particular religious tradition?

THEME B: CRIMINAL DUE PROCESS

Instructor Resources
Robert M. Bloom and Mark S. Brodin. Criminal Procedure: The Constitution and the Police. New
York: Aspen Publishers, 2006.
R. H. Helmholz, et al. The Privilege Against Self-Incrimination: Its Origins and Development. Chicago:
University of Chicago Press, 1997.
Richard M. Pious. The War on Terrorism and the Rule of Law. Los Angeles: Roxbury, 2006.
H. L. Pohlman. Constitutional Debate in Action: Criminal Justice. Lanham, MD: Rowman &
Littlefield, 2005.
Eric A. Posner and Adrian Vermeule. Terror in the Balance: Security, Liberty, and the Courts. New
York: Oxford University Press, 2006.
William Rehnquist. All the Laws But One: Civil Liberties in Wartime. New York: Vintage Books, 2000.

Chapter 5: Civil Liberties

Gary L. Stuart. Miranda: The Story of Americas Right to Remain Silent. Tucson: University of Arizona
Press, 2004.
Andrew E. Taslitz. Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789
1868. New York: New York University Press, 2006.
Welsh S. White. Mirandas Waning Protections: Police Interrogation Practices after Dickerson. Ann
Arbor: University of Michigan Press, 2001.

Summary

00000Many controversial civil liberties cases occur in the area of criminal procedure. Although the
Constitution identifies basic due process protections for criminal defendants, the Warren Court of the
1950s and 1960s greatly expanded the interpretation of these protections and added a number of extra
safeguards to prevent the government from infringing the rights of the accused. One of these extra
precautions, the exclusionary rule, states that evidence obtained through unreasonable searches and
seizures in violation of the Fourth Amendment and coerced confessions in violation of the Fifth
Amendment cannot be used against a defendant. For a search to be considered reasonable, the Court has
ruled that search warrants are normally required. However, the Court has also upheld several exceptions
to that requirement. For example, the police can search a suspectand the area under his or her
immediate controlat the time of arrest. The police may also search a car without a warrant if they
have reason to believe that evidence of illegal activity may be found within the vehicle. Similarly, the
Court has ruled that evidence collected by well-intentioned police may be allowed at trial, even though
the warrant with which it was collected was faulty because of a technical error.
As a logical corollary of the exclusionary rule, the Court also ruled in Miranda v. Arizona that a coerced
confession could not be admitted into evidence unless a defendant was informed of her or his rights
under the Fifth Amendment. Before proceeding with any interrogation, police must inform the
defendant that he or she has the right to remain silent, the right to have an attorney present during police
questioning, and the right to have an attorney provided if he or she can not afford one. The Fifth
Amendment, however, protects the defendant from having to verbally testify against him- or herself; the
government may still collect potentially incriminating physical evidence from the defendant without his
or her consent.

00000Discussion Questions
00. In Katz v. United States (1967), the Supreme Court ruled that the government must obtain a
warrant before searching and seizing a conversation using a wiretap on a public phone. In his
dissent, however, Justice Hugo Black emphatically stated that . . . the Fourth Amendment simply
does not apply to eavesdropping. Do you think that the government should be required to obtain
a warrant before eavesdropping on a private conversation? Should the warrant requirement also
extend to conversations that are held in public or that can be overheard by passersby? Should it
extend to electronic conversations (text messaging, blogging) as well?
00. Critics of the Warren Court complain that the Supreme Court justices greatly expanded the
interpretation of the Bill of Rights beyond the intent of the Framers. Do you think the Founders

Chapter 5: Civil Liberties

intended for a system of justice whereby police would be required to advise a suspect of his rights
before questioning him? Which do you think was more important to the Framers of the
Constitution: protecting liberties at all costseven if the guilty go freeor ensuring public safety
by allowing police the freedom to investigate criminal activities fully?
00. The USA Patriot Act has been extensively criticized for its reduction of civil liberties protections
for terrorism suspects. Since terrorism is largely conspiratorial and secretive by nature, does it
make sense to expect the government to follow the same rules when investigating terrorism
activities as when it is investigating other crimes? What are the arguments for and against treating
terrorism as just another type of crime?