American Government


By the end of this chapter, you should be able to:

Ø      Explain how the civil liberties may at times be a matter of majoritarian politics and offer several examples.

Ø      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.

Ø      Explain how the structure of the federal system affects the application of the Bill of Rights.

Ø      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.

Ø      List the categories under which the Supreme Court may classify “speech.”

Ø      Explain the distinction between “protected” and “unprotected” speech and name the various forms of expression that are not protected under the First Amendment. Describe the test used by the Court to decide the circumstances under which freedom of expression may be qualified.

Ø     State what the Supreme Court decided in Miranda v. Arizona, and explain why that case illustrates how the Court operates in most such due process cases.


In 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, although several exceptions exist. First, libel—false statements that harm a person’s reputation—remains unprotected, but it has been made more difficult to prove in certain situations. Public figures must prove actual malice, an extremely high burden in which 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 so 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, such as the rap group 2-Live Crew being 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 Court’s 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 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 Court’s position in determining whether behavior is considered “symbolic speech” in the following way: (a) the speaker must have an intent to convey a message; (b) the audience must be likely to understand the message; and (c) 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 component itself. Thus the government can punish the burning of a draft card as a form of protest, since its goal in making the regulation is not to suppress the idea being communicated but to defend the nation’s security. On the other hand, the government cannot forbid the burning of the American flag as a form of protest since 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 it was provided 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, in the words of Leo Pfeffer, as a “stepchild” of the free speech clause. Until the 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 Sherbert’s compelling interest test. In City of Boerne v. Flores, Archbishop of San Antonio (1997), however, the Court ruled that the RFRA exceeded Congress’s authority. The opinion, delivered by Justice 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 the 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 might be taken by Congress.

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 creation of an official religion and restricts the government from becoming involved in church 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 between church and state. These tests have produced a great deal of uncertainty, to the point where some courts have openly refused to abide by the Lemon standards, while others have distorted their meaning to reach a desired conclusion. Thus the ambiguity of both religion clauses awaits further judicial clarification.

Many controversial civil liberties cases occur in the area of criminal procedure.  The exclusionary rule states that illegally obtained evidence or confessions cannot be used against a defendant. Search warrants are normally required and must describe what is to be searched and seized. They can be issued only upon probably cause or reasonable grounds due to presumed illegal activity. However, if the individual is arrested, the police can search her or him, things in plain view, and things and places that the individual has under her or his immediate control. During the 1980s, the original ruling in Mapp v. Ohio was relaxed somewhat by the Supreme Court, which limited the exclusionary rule’s coverage and incorporated a “good faith” exception.

A logical corollary of the exclusionary rule is the Miranda rule, which arose from the Court decision that a confession could not be admitted into evidence unless a defendant was informed of her or his rights under the Fifth Amendment. These rights included the right to remain silent, to have an attorney present during interrogation, and to have an attorney provided if the accused can not afford one.



.          The politics of civil liberties 

.        The Framers believed that the Constitution limited government―what wasn’t specifically allowed was obviously not allowed 

.        States ratifying constitutions demanded the addition of the Bill of Rights

1  .          Bill of Rights seen as specific restrictions on federal government actions

2  .         Bill of Rights not originally understood as applying to state government actions

.        Civil liberties: protections the Constitution provides against the abuse of government power

.        Civil rights: protecting certain groups against discrimination

.         In practice, no clear line between civil liberties and civil rights

II  .        Culture and civil liberties   

.        Rights in conflict

1  .         Constitution and Bill of Rights contain a list of competing rights and duties

a          Sheppard case (free press versus fair trial)

b          New York Times and the Pentagon Papers (common defense versus free press)

c          Kunz anti-Jewish speeches (free speech versus public order)

2  .         Struggles over rights follow a pattern similar to interest-group politics in economic issues.

.        War has been the crisis that has most often restricted the liberty of some minority  

1  .         Sedition Act of 1798, following the French Revolution

2  .         Espionage and Sedition Acts, directed against German-Americans in World War I  

3  .         Smith Act (1940): made it illegal to advocate the overthrow of the U.S. government

4  .         Internal Security Act of 1950: required members of the Communist Party to register with the government

5  .         Communist Control Act of 1954: declared the Communist Party to be part of a conspiracy to overthrow the government

6  .         Supreme Court usually upheld this legislation, though their importance abated as war or crisis passed

7  .         Some use is still made of the Sedition Act, although the Supreme Court has increasingly protected political speech.

.        Cultural conflicts 

1  .         Original settlement by white European Protestants meant that “Americanism” was equated with their values

2  .         Conflicts about the meaning of some constitutionally protected freedoms surround the immigration of “new” ethnic, cultural, and/or religious   groups

a          Jews offended by crèches at Christmas

b          English-speakers often prefer monolingual schools.

c          Is prohibiting gay men from serving as Boy Scout troop leaders discriminatory?

3  .         Differences even within a single cultural tradition (example: pornography)

.        Applying the Bill of Rights to the states

1  .         Before Civil War, Constitution and Bill of Rights were only understood to apply to federal government―not to state governments

2  .         Change began after Civil War with the 14th Amendment (1868)

a          Due process clause: “no state shall deprive any person of life, liberty or property without due process of law”

b          Equal protection clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws”

3  .         Supreme Court used these two clauses to apply certain rights to state governments

a          1897: said no state could take private property without just compensation

b          1925 (Gitlow): declared federal guarantees of free speech and free press also applied to states

c          1937 (Palko v. Connecticut): certain rights must apply to the states because they are essential to “ordered liberty” and they are “principles of justice”

4  .         Decisions began the process of incorporation: applying some (but not all) federal rights to the states

5  .         Bill of Rights is now generally applied to the states except for:

a          2nd Amendment: right to bear arms

b          3rd Amendment: quartering troops

c          5th Amendment: right to be indicted by grand jury

d          7th Amendment: right to jury trial in civil cases

e          8th Amendment: ban on excessive bail and fines

6  .         “New rights” (e.g., right to privacy) are applied to both state and national governments

III  .       Interpreting and applying the First Amendment (THEME A: FIRST AMENDMENT RIGHTS) 

.        Speech and national security 

1  .         Blackstone: press should be free of prior restraint, but then must accept the consequences if a publication is improper or illegal

2  .         Sedition Act of 1798 followed Blackstone’s view, with improvements 

a          Jury trial, not a judge’s decision

b          Defendant would be acquitted if it could be proved that the publication was accurate

3  .         Congress defines limits of expression: 1917–1918 

a          Treason, insurrection, forcible resistance to federal laws, encouraging disloyalty in the armed services not protected by the First Amendment

b          Upheld in Schenck (1919) via “clear and present danger” test (authored by Justice Oliver Wendell Holmes)

c          Holmes dissented in cases that subsequently applied this test, believing that its conditions had not been met

4  .         Change in national-state relationship: Gitlow (1925) 

a          Supreme Court initially denied that due process clause made the Bill of Rights applicable to the states.

b          Change occurred in Gitlow (1925), when due process clause was applied to protect “fundamental personal rights” from infringement by the states

5  .         Supreme Court moved toward more free expression after WWI but with some deference to Congress during times of crisis 

a          Supreme Court upheld the convictions of Communists under the Smith Act

b          By 1957, to be punished, the speaker must use words “calculated to incite” the overthrow of the government

c          By 1969 (Brandenburg), speech calling for illegal acts is protected, if the acts are not “imminent”

d          In 1977, American Nazi march in Skokie, Illinois, is held to be lawful

e          In 1992, Minnesota law that made it a crime to display hate symbols or objects overturned

f          Hate speech is permissible, but hate crimes that result in direct physical harm may be punished more harshly

.        What is speech? Some kinds of speech are not fully protected. 

1  .         Libel: written statement defaming another by false statement 

a          Defamatory oral statement: slander

b          Variable jury awards

c          Public figures must also show the words were written with “actual malice”—with reckless disregard for the truth or with knowledge that the words were false

2  .         Obscenity 

a          No enduring and comprehensive definition

b          1973 definition: judged by “the average person, applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value”

c          Balancing competing claims remains a problem: freedom vs. decency

d          Localities decide whether to tolerate pornography but must comply with strict constitutional tests if they decide to regulate it

e          Protection is extended to almost all forms of communication; e.g., nude dancing is somewhat protected

f          Indianapolis statute, Court ruled the legislature cannot show preference for one form of expression over another (women in positions of equality vs. women in positions of subordination)

g          Zoning ordinances for adult theaters and bookstores have been upheld: regulates use of property rather than expression

h          Internet regulation ruled unconstitutional by the Supreme Court.

3  .         Symbolic speech 

a          Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message (example: burning a draft card)

b          However, statutes cannot make certain types of symbolic speech illegal: e.g., flag burning is protected speech

IV  .       Who is a person? 

.        Corporations and organizations usually have same rights as individuals. 

1  .         Corporations and interest groups have First Amendment rights

2  .         Businesses that cater to “vice” also have First Amendment rights

.        Restrictions can be placed on commercial speech (advertising); however, the regulation must be narrowly tailored and serve the public interest

.        McCain-Feingold campaign finance reform changed the parameters of acceptable political speech for corporations and other organizations

1  .         Organizations could not pay for “electioneering communications” that “refer” to a specific candidate on radio or television 60 days before an election

2  .         Supreme Court upheld this law, saying ads that only mentioned, but did not “expressly advocate” a candidate were ways of influencing the election

.        Young people (minors) may have less freedom of expression than adults 

1  .         Hazelwood (1988) allowed that a school newspaper can be restricted

2  .         School-sponsored activities can be controlled if controls are related to pedagogical concerns

.        Church and state 

.        The free exercise clause 

1  .         Relatively clear meaning: no state interference, similar to speech 

a          Ensures that no law may impose particular burdens on religious institutions

b          Example: Hialeah, FL, cannot ban animal sacrifices by Santerians because killing animals is not generally illegal

2  .         But there are no religious exemptions from laws binding all other citizens, even if that law oppresses your religious beliefs

3  .         Some conflicts between religious freedom and public policy continue to be difficult to settle

a          Conscientious objection to war, military service

b          Refusal to work Saturdays (Seventh-Day Adventists)

c          Refusal to send children to public school beyond eighth grade (Amish)

.        The establishment clause 

1  .         Jefferson’s view: there is a “wall of separation” between church and state

2  .         Ambiguous phrasing of First Amendment requires Court interpretation

3  .         Supreme Court interpretation: no governmental involvement, even if the involvement would be nonpreferential 

a          1947 New Jersey case allowed Catholic schools parents to be reimbursed for the cost of busing their children to schools because business is a religiously-neutral activity

b          The Court has since struck down: school prayer, “creationism,” in-school release time for religious instruction

c          Court has allowed certain kinds of aid to parochial schools and denominational colleges

d          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

e          Government involvement in religious activities is constitutional if it meets the following tests:

(1)          Secular purpose

(2)          Primary effect neither advances nor inhibits religion

(3)          No excessive government entanglement with religion

f          Supreme Court rulings, however, remain complex and shifting in regard to the establishment clause

VI  .       Crime and due process 

.        The exclusionary rule

1  .         The challenge of evidence in the courtroom

a          Most nations let all evidence into trial, later punishing any police misconduct

b          United States excludes improperly obtained evidence from trial 

2  .         Exclusionary rule: evidence gathered in violation of the Constitution cannot be used in a trial

a          Implements the Fourth Amendment (freedom from unreasonable searches and seizures) and the Fifth Amendment (protection against self incrimination)

b          Mapp v. Ohio (1961): Supreme Court began to use the exclusionary rule to enforce a variety of constitutional guarantees

  B  .        Search and seizure 

1  .         When can reasonable searches of individuals be made? 

a          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

b          Incident to an arrest

2  .         What can the police search, incident to a lawful arrest? 

a          The individual being arrested

b          Things in plain view

c          Things or places under the immediate control of the individual

3  .         What about an arrest of someone in a car? 

a          Answer changes almost yearly

b          Recent cases have allowed the police to do more searching

4  .         Court attempts to protect a “reasonable expectation of privacy”

.        Confessions and self-incrimination 

1  .         Constitutional ban originally was intended to prevent torture or coercion

2  .         Extended to people who are unaware of their rights, particularly their right to remain silent in both the courtroom and the police station 

a          Miranda case: confession presumed to be involuntary unless suspect fully informed of their rights

b          Protection does not apply if, while in jail, you confess a crime to another inmate who turns out to be an undercover officer

.        Relaxing the exclusionary rule 

1  .         Positions taken on the rule: 

a          Any evidence should be admissible

b          Exclusionary rule has become too technical to effectively deter police misconduct

c          Rule is a vital safeguard for liberties

2  .         Courts began to adopt the second position, allowing some exceptions to the rule. 

a          Limited coverage (e.g., police with greater freedom to question juveniles)

b          Incorporation of the “good-faith exception”

c          “Overriding considerations of public safety” may justify questioning a person without first reading them their rights

d          Evidence that would “inevitably” have been found is admissible

.         Terrorism and Civil Liberties 

1  .         U.S. Patriot Act meant to increase federal government’s powers to combat terrorism 

a          Government may tap any telephone used by a suspect, rather than obtaining a separate order for each phone

b          Government may tap, with a court order, internet communications

c          Government may seize, with a court order, voicemail

d          Investigators can share information learned in grand jury proceedings

e          Any non-citizen may be held as a security risk for seven days, longer if certified to be a security risk

f          Federal government can track money across U.S. borders and among banks

g          Statute of limitations on terrorist crimes eliminated; penalties increased

2  .         Executive order then proclaimed a national emergency; noncitizens believed to be a terrorist, or to have harbored a terrorist, will be tried by a military court. 

a          Tried before a commission of military officers

b          Two-thirds vote of the commission to find the accused guilty

c          Appeal to the secretary of defense or the president, only

3  .         Can the people the U.S. captures be held without giving them access to the courts?

a          Traditional answer from WWII era: spies sent to this country were “unlawful combatants”

b          American citizens detained while working with the enemy (i.e., the Taliban) were entitled to hearing before neutral decisionmaker to challenge the basis for their detention

4  .         Many controversial provisions of the Patriot Act automatically expire in 2005

Important Terms

*clear and present danger test

Law should not punish speech unless there was 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 and government may not establish a religion.

*free exercise clause

First Amendment requirement that law cannot prevent free exercise of religion.

*good-faith exception

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


Court cases that apply the Bill of Rights to the States.


Writing that falsely injures another person.

*probable cause

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

*search warrant

A judge’s order authorizing a search.

*symbolic speech

An act that conveys a political message.

*wall of separation

Court ruling that government cannot be involved with religion.

Important CASES

*clear and present danger test

Law should not punish speech unless there was 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 and government may not establish a religion.

*free exercise clause

First Amendment requirement that law cannot prevent free exercise of religion.

*good-faith exception

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


Court cases that apply the Bill of Rights to the States.


Writing that falsely injures another person.

*probable cause

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