Civil Liberties and the Constitution

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Course Length:
15 weeks
  • This course explores the meaning of the Constitution through an examination of leading opinions of the U.S. Supreme Court, an institution that is both legal and political in nature. This semester focuses on the First Amendment’s provisions regarding religion (establishment and free exercise) as well as free speech and association.
  • This is a challenging course that requires your continual attendance and participation. If you are the type of person who only shows up for exams, drop this course now. You will be unable to pass.
  • In addition, this is not a lecture course. I have structured this course to rely on student participation. If you are the kind of person who is reluctant to speak in class or in public, you must overcome this if you want to succeed in law school or in any profession. I have included assignments that should give you some confidence--or at least advance notice--about expressing yourself before the class.
  • A warning to students considering law school: this class may test your taste for the law, but it will not measure your aptitude for, desire for, or future success in law school. The study of constitutional law is more than a legal enterprise. It requires knowledge of linguistic theory, history, moral philosophy and democratic theory, and it raises fundamental political questions about the nature of the Constitution, the role of judges in the federal political system and—most broadly--about the sort of community the American nation is and aspires to be. I thus consider this course an indispensable element of a general liberal and civic education.



  • O’Brien, Constitutional Law and Politics Vol. 2: Civil Rights and Civil Liberties (2005)
  • Additional readings available on eCourses



  • Exams: You will write a mid-term and a final exam. Each exam will include objective and essay components.
    • Alternate or make-up exams will NOT be given without express written permission from the university produced in advance. If you need extra time or assistance to take these exams--or for any part of this course--please let me know as soon as possible so we can make reasonable accommodations.
    • In compliance with the Americans With Disabilities Act, all qualified students enrolled in this course are entitled to “reasonable accommodations.” It is the student’s responsibility to inform the instructor of any such needs before the end of the second week of class.
  • Briefs: You will be required to write and present two case briefs during the semester. An appendix in the text demonstrates how to write an effective brief. Follow that structure, and be sure to include your own assessment of whether you believe the case was rightly decided. Where was the majority opinion especially strong or weak? Do the dissents or concurring opinions have stronger arguments?
    • Briefs should be no longer than two pages, single-spaced—the briefer, the better. Send me a copy of your brief by e-mail 24 hours before we discuss the case in class. During class I will expect you to answer questions about the case from me and from other students.
  • Participation: I expect you to come to class prepared to discuss the assigned readings and to debate issues raised by these cases.
    • I reserve the following rights: (1) to call on students even when they do not volunteer (2) to give in-class surprise quizzes that test your knowledge of the readings. I hope never to have to do either. So keep up with the readings and be prepared to participate in class.
  • Attendance policy: I will take attendance at every class. Students who have five unexcused absences will see their course grade drop by one full grade (i.e. from B to C). Further absences will drop your course grade by one additional grade per absence. Students with excessive absences will NOT be allowed to take class exams.
  • Paper: You will write an 8 to 12 page paper, due on Nov. 19, about one of the topics of constitutional law discussed this semester or about a case currently before the Supreme Court related to one of the topics covered this semester. The Court’s official website is [].
    • Your paper will require additional research, including cases and relevant secondary sources (books, articles, law reviews, etc.). You should thus familiarize yourself with Lexis-Nexis--available through our library website--as soon as possible.
    • I will be happy to help you at every step in the paper-writing process, from your initial proposal to your final draft. I will distribute more details about this assignment during the first part of the semester.



  1. Midterm 25%
  2. Paper 25%
  3. Final 30%
  4. Briefs, attendance and participation 20%


Class schedule (subject to change)

  • Starred cases (*) are on Vista
  • Bold cases are most likely to be briefed

Aug. 27 Introduction to civil liberties

Aug. 29 Religion and the Constitution


  • Religion: Separation or accommodation?

Sept. 5 O’Brien, pp. 663-680

  • Everson v. Board of Education
  • Engle v. Vitale
  • Abington v. Shempp

Sept. 10 Prayer in schools (continued)

  • Wallace v. Jaffree
  • Lee v. Weisman

Sept. 12 The above continued

  • Santa Fe v. Doe*
  • Elk Grove School District v. Newdow (p. 161)

Sept. 17 Recognizing religion in the public square

  • Lynch v. Donnelly*
  • Van Orden v. Perry*
  • Jefferson County v. ACLU*

Sept. 19 Aid to religious groups and schools

  • Everson v. Board of Education
  • Lemon v. Kurtzman

Sept. 24 The above continued

  • Zobrest v. Catalina Foothills
  • Rosenberger v. Virginia
  • Kiryas Joel v. Grumet

Sept. 26 The above continued

  • Good News Club v. Milford
  • Zelman v. Simmons-Harris
  • Helm v. Freedom from Religion*

Oct. 1 Free exercise of religion

  • Reynolds v. U.S.*
  • Sherbert v. Verner
  • Wisconsin v. Yoder

Oct. 3 Recent issues in free exercise

  • Employment Division v. Smith
  • City of Boerne v. Flores
  • Locke v. Davey

Oct. 8 Catch-up day


  • Freedom of speech

Oct. 15 Clear and present danger

  • O’Brien, pp. 386-405
  • Schenck v. U.S.
  • Gitlow v. New York

Oct. 17 Imminent lawless action

  • Dennis v. U.S.
  • Chaplinsky
  • Brandenburg

Oct. 22 Symbolic speech and public order

  • Cohen v. California
  • Clark v. CCNV*
  • Texas v. Johnson
  • Hill v. Colorado*

Oct. 24 True threats and imminent lawless action

  • Hustler v. Herceg*
  • American Coalition of Life Activists (2002, 9th Circuit)*
  • Virginia v. Black

Oct. 29 Free speech and public schools

  • West Virginia v. Barnette
  • Tinker v. Des Moines

Oct. 31 The above continued

  • Bethel School District v. Fraser p. 487
  • Frederick v. Morse*

Nov. 5 Foundations of libel

  • New York Times v. Sullivan
  • Gertz v. Welch
  • Dun & Bradstreet v. Greenmoss*

Nov. 7 Libel and reputation

  • Hustler v. Falwell*
  • Florida Star v. B.J.F.*
  • Milkovich v. Lorain Journal*

Nov. 12 Other freedoms of the press

  • Near v. Minnesota
  • New York Times v. U.S. (Pentagon Papers)
  • Branzburg v. Hayes

Nov. 14 Obscenity, pornography and offensive speech

  • Roth
  • Miller v. California
  • New York v. Ferber



Nov. 26 The above continued

  • Paris I v. Slaton
  • American Booksellers Association v. Hudnut*
  • City of Erie v. Pap’s A.M.

Nov. 28 Regulation of broadcast, cable and Internet

  • Red Lion
  • FCC v. Pacifica
  • United States v. American Library Association
  • Ashcroft v. Free Speech Coalition

Dec. 3 Freedom of association

  • NAACP v. Alabama
  • Roberts v. Jaycees
  • Hurley v. Irish-American Gay, Lesbian, and Bisexual Group*
  • Boy Scouts of America v. Dale

Dec. 5 Catch-up day