Thinking Citizen Blog — Civil Liberties and the Supreme Court: the Inseparability of Power, Principles, and Definition

Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day

Today’s Topic — Civil Liberties and the Supreme Court: the inseparability of power, principles, and definition

What does freedom of speech mean? Well, it depends on what you mean by “speech.” Is burning a draft card “speech”? How about burning a flag? How about hardcore pornography? How about hardcore pornography with an ounce of redeeming social value? Who is to say whether that ounce really exists? Or take religion. What is freedom of religion? Is my religion whatever I say it is? Who defines what qualifies and what doesn’t as an acceptable tenet of a religion? How about polygamy? animal sacrifice? Every time the Supreme Court makes a decision it is implicitly or explicitly defining a keyword based on principles that are either explicit or implicit. Each time it does so it affirms its power relative to the other branches of government. Today a few related notes on speech, religion, and privacy. Experts — please chime in. Correct, elaborate, elucidate.


1. So what? Neither does the word democracy. Or the word slavery.

2. This absence does not mean it’s not important. In fact, it could be all important.

3. But what is it? Whatever you want it to be? Whatever the Supreme Court decides it is? Does it include the right to an abortion? Should it be in the hands of a fifth swing voter on the Court to decide? Should that vote have more power than that of any legislature of any state in the nation? or the US Congress? the President? the people?

NB: The apostle of privacy was Louis Brandeis (above). He defined it as “the right to be let alone — the most comprehensive of rights and the one most valued by civilized men.” (Olmstead v US, 1928). Is there a better definition? Is this just a restatement of the idea that that government governs best that governs least? Put differently if you are unsure whether the government has the power to do x,y, or z, the correct default answer is “no.” James Madison once said that property is the “fence of liberty.” This is no longer the case. Is privacy its replacement? Should it be?

FREEDOM OF SPEECH — who defines it? who sets its limits? in the name of what?

1. In Roth v US (1957), Justice Brennan (above) declared that any text with the slightest redeeming social value has the full support of the First Amendment.

2. This decision was re-formulated in Miller v California (1973) as a “three pronged test,” but this changed nothing at all.

3. While theoretically “obscenity” is not covered by the First Amendment, the practical consequence of Supreme Court jurisprudence on the subject is that hardcore pornography is ubiquitous.

NB: The most famous quasi-definition of pornography was by Justice Potter Stewart in Jacobellis v Ohio (1964). The decision declared unconstitutional Ohio’s ban on the showing of Louis Malle’s film “Les Amants.” The vote was 6 to 3 with Chief Justice Warren, and Justices Clark and Harlan dissenting. Potter Stewart: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

FREEDOM OF RELIGION — what is a religion? what tenets pass muster? Why or why not?

1. Polygamy was a tenet of the Mormon faith until two Supreme Court decisions (Reynolds v US, 1878, and Davis v Beason, 1890) triggered a religious epiphany on the part of Mormon leaders that removed the tenet. (Photo above is of Brigham Young, leader of the Mormon Church from 1844 to 1877. He had 55 wives and 56 children with 16 of his wives. He is known as the “American Moses” or the “Mormon Moses”).

2. Was this interference on the part of the Supreme Court a violation of the free exercise clause of the First Amendment?

3. Or was it a perfect example of the Supreme Court setting appropriate limits on the definition of religion and the acceptability of certain religious practices?

NB: The most controversial recent case involving acceptable religious practices was Employment Division v Smith (1990) which involved the use of peyote in Native American rituals. The decision was 6 to 3 upholding the Oregon ban. The Court ruled that to give a religious exemption from a generally applicable criminal law was to make each citizen “a law unto himself.” The response was explosive. In 1993, then-Congressman Chuck Schumer introduced a bill in the House calling for an over-ruling of the decision. The bill was called the Religious Freedom Restoration Act (1993). Senator Ted Kennedy introduced a companion bill in the Senate. The House bill passed unanimously. (Those were the good old days.) In the Senate, there were only three votes against. Four years later, the Supreme Court, in the case of Boernes v Flores (1997) ruled the Religious Freedom Restoration Act unconstitutional. So who was right? What are the limits of free exercise? Who should have the power to define the term? Why?


Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.

This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.

Passionate about education, thinking citizenship, and art.