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Landmark Supreme Court Cases

Let's learn about some landmark Supreme Court cases and think about how they impacted American law and society!

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3.14 Required Supreme Court Cases

15 min read • may 3, 2023

Akhilesh Shivaramakrishnan

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Some Background

AP US Government & Politics students should be thoroughly familiar with 15 Supreme Court Cases for the AP exam. 

Not only should you be familiar with the final decisions, you should be familiar with the reasons for the majority opinion and how they impacted American society. 

According to the College Board, these cases are essential content in college courses and in-depth analysis will help you gain the basis needed for future courses in politics. 

Why Do I Need to Know These?

On your AP exam in May, your FRQ #3 will be a SCOTUS comparison essay.

You will be asked to compare one of the required cases (for which no information will be provided) with a case that is presented to you on the exam.

These required cases tend to appear throughout the AP exam multiple choice.

It is essential that you analyze these cases in depth so you are prepared for the AP Exam!

What Are The Required Cases?

Marbury v. madison (1803), mcculloch v. maryland (1819).

Schenck v. the United States (1919)

Brown v. Board of Education (1954)

Engel v. vitale (1962), baker v. carr (1962), gideon v. wainwright (1963), tinker v. des moines independent community school district (1969).

New York Times Co. v. United States (1971)

Wisconsin v. Yoder (1972)

Shaw v. reno (1993), united states v. lopez (1995), mcdonald v. chicago (2010), citizens united v. federal election commission (2010), why these cases.

According to the College Board, these cases are essential to college courses in introductory history and politics. Many of these cases are controversial or were decided 5-4. 

These cases will help you further enhance your knowledge of the AP Government curriculum. You’ll be able to see how the content you learn about in class applies to real situations.

4 Key Points for Each Case

What context does the College Board want you to understand the case through? There is a reason why the College Board wants you to know each of the required Supreme Court cases for the AP exam. In their syllabus documents, they list out the exact reason why a particular case is relevant to government and politics. This can give you context on why each case is important, so make sure to read it!

A short summary of the case : Like an essay for your AP history class, you want to make sure that you provide context in your Supreme Court comparison FRQ. Therefore, it’s crucial that you understand the situation behind each of these cases. 

Might be helpful - the date : Although you will never be asked to recall the exact date of a Supreme Court case, knowing the date can help you put the case into context and can enhance your FRQ response.

Constitutional issues: What does the American government revolve around? You got it - the Constitution! Make sure you understand the constitutional issue that each case presents.

Holding, Constitutional Principle & Majority Opinion: The holding of the case is based on something from the Constitution. Knowing the holding and constitutional principle that was used to decide the case is the most important part . These will help you answer FRQ #3, which will ask you to compare the holding in one of the 15 required cases to a case you will be presented with on the AP exam.

Cases Involving Federalism

College Board Context: “CON-2.B.2: The balance of power between the national and state governments has changed over time based on US Supreme Court interpretation of (these) cases.”

Short Summary : In 1816, the Second Bank of the United States was chartered; soon after, in 1818, however, Maryland decided to pass a law that imposed taxes on the bank. James McCulloch , who served as a cashier at the Baltimore branch of the Second Bank, decided not to pay the tax. The state court had ruled that the Bank was unconstitutional, to begin with, and that the federal government did not have the authority to charter a bank

Constitutional Issues: Two questions could be explored in this case. Did Congress have the implied power to create a bank? And secondly, could states tax a federal entity/bank?

Holdings and Constitutional Principles : Congress concluded based on the Necessary & Proper Clause that Congress is not limited by its expressed powers. It was decided that through Congress’ implied powers, they had the ability to create a bank. Congress also concluded based on the Supremacy Clause that because the national laws were superior to state laws, the states were not allowed to tax the federal government.

Implied Powers : implied powers expand upon the enumerated powers that are listed in the Constitution. Congress is allowed to borrow money, coin money, and tax expressly by the Constitution. The implied power of creating a national bank allows for the federal government to implement this expressed power.

Short Summary : Alfonzo Lopez was a Texas high school senior who took a concealed weapon inside his school. Federal charges were soon imposed because of his violation of the Gun-Free School Zones Act of 1990. The act stated that individuals could not possess firearms within school zones based on the premise of the Commerce Clause.

Constitutional Issue : This case explored a constitutional issue involving the commerce clause, and whether the Gun-Free School Zones Act of 1990 exceeded the power allowed by the clause.

Holding and Constitutional Principles : In the ruling, the law was considered unconstitutional since having a gun in the school zone did not substantially affect interstate commerce , which is a clear provision in the commerce clause. This case also reaffirmed the Tenth Amendment, which protects states’ rights. It was clear through this case that the commerce clause did not grant Congress limitless power.

Straight from the AP US Government Course Description : this case “(introduced) a new phase of federalism that recognized the importance of state sovereignty and local control.”

Cases Involving the First Amendment

College Board Context: “LOR-2: Provisions of the US Constitution’s Bill of Rights are continually being interpreted to balance the power of the government and the civil liberties of individuals.”

TIP : Do you have trouble remembering the main points the First Amendment addresses? Remember the acronym FEE RAPPS !

F ree E xercise Clause

E stablishment Clause

P etition the Government

Short Summary : The New York Board of Regents had authorized that at the beginning of each day, a short but voluntary prayer would be recited. Several organizations filed suit against the Board of Regents, claiming that the prayer violated the Constitution. The New York Court of Appeals dismissed their arguments.

Constitutional Issue : This case was significant and interesting because this prayer was both voluntary and non-denominational. However, the organizations filed suit based on a violation of the Establishment Clause of the Constitution, which states that a law could not be made “respecting an establishment of religion.” 

Holding and Constitutional Principles : The court held that states could not hold prayers in public school EVEN IF it was voluntary and EVEN IF the prayer did not adhere to a specific religion. Because the act of prayer was considered a religious activity, having it occur in a public school (which is funded by the government) would go against the establishment clause of the first amendment.

Main Idea? School sponsorship of religious activities = violation of first amendment

Short Summary : Jonas Yoder, as well as other Amish parents, refused to send their children to school after the 8th grade. In accordance with their religion, they did not agree with high school attendance. They were later charged under a Wisconsin law that required students to attend school until age 16.

Constitutional Issue : This case relates to the other major religious clause of the 1st Amendment: the free exercise clause. By requiring Wisconsin parents to send their children to school, without a faith exception, did it violate the parents' rights to freely exercise their religion?

Holding and Constitutional Principles : The court held that the requirement to send children to school beyond the eighth grade was unconstitutional. It stated that an individual’s interest in the free exercise of religion was more powerful than a federal interest in sending children to school beyond the eighth grade. 

Short Summary : A group of students decided to wear black armbands in order to protest the Vietnam War. Mary Beth Tinker and Christopher Eckhardt decided that they would wear their armbands to school despite warnings from school administration. After wearing the armbands to school, they were sent home. The students decided to sue their school district for violating the freedom of expression.

Constitutional Issue : The main question that was addressed here was whether the prohibition against wearing these armbands (and in general - symbolic protest) violated the freedom of speech clause of the First Amendment.

Holding and Constitutional Principle : The Supreme Court held that students still have free speech rights at school, and in order to justify the suppression of speech, the speech must substantially interfere with school operations (explore the case Bethel School District v. Fraser - it’s interesting). As referenced earlier, this case relates directly to the First Amendment, and the ruling confirmed that students’ right of symbolic speech was more powerful than the potential disorder that it could cause.

Majority Opinion : A common phrase you might hear is: “students don’t shed their rights at the schoolhouse gate.” This quote comes from the majority opinion in this case!

New York Times Co v. United States (1971)

Short Summary : This case, also known as the Pentagon Papers case had to do with the First Amendment. The Nixon Administration tried to prevent the New York Times from publishing material that belonged to a Defense Department study about US intervention in Vietnam. President Nixon stated that it was necessary to national security to prohibit it before publication, also known as prior restraint.

Constitutional Issue : The Constitutional issue that revolved around this case was whether the Nixon administration’s prior restraint was constitutional and if preventing the publication of “classified material” was a violation of the First Amendment’s freedom of the press.

Holding and Constitutional Principle : The Supreme Court, in this case, bolstered the freedom of the press guaranteed by the First Amendment. In a 6-3 vote, the Court established that there was a “heavy presumption against prior restraint” even for national security purposes. This is a key case to know for freedom of the press!

Schenck v. United States (1919)

Short Summary : During World War I, a pair of socialists, including Charles Schenck distributed leaflets that stated the draft violated the 13th Amendment - which prohibits involuntary servitude. The leaflet wanted people to disobey the draft. Schenck was charged with violating the Espionage Act of 1917. They appealed on the grounds of the First Amendment.

Constitutional Issue : This was a First Amendment case and the question was whether the Espionage Act violated the First Amendment and if it was an appropriate way that Congress exercised its wartime authority. 

Holding and Constitutional Principle : The Supreme Court held that the Espionage Act did not violate the First Amendment and it was an appropriate exercise of Congress’ wartime authority. This was a key limitation on the First Amendment as the free speech clause does not allow for advocacy of unlawful behavior.

Cases Involving Selective Incorporation

College Board Context: “LOR-3: Protections of the Bill of Rights have been selectively incorporated by way of the Fourteenth Amendment’s due process clause to prevent state infringement of basic liberties.”

Short Summary: Clarence Earl Gideon was charged in Florida state court on a felony - breaking and entering charge. During his trial, Gideon requested that he receive a court-appointed lawyer; however, in accordance with Florida State law, an indigent defendant could only have an attorney be appointed in capital crimes/cases. Gideon then filed a habeas corpus suit, stating that the court’s decision violated his rights to be represented.

Constitutional Issue : The constitutional issue in this case involved the Sixth Amendment and whether the right to counsel guaranteed in this amendment also applied to felony defendants in state court.

Holding and Constitutional Principle : The holding was that the Sixth Amendment’s right to counsel applies to state court defendants via the Fourteenth Amendment. The Court stated that because the right of counsel is fundamental, it should be incorporated into the states. 

Roe v. Wade (1973)

*This case is no longer required on the AP Government exam, starting in 2023. However, due to its importance, we would like students to understand the case and its implications.*

Short Summary: Norma McCorvey (Jane Roe) wanted an abortion but could not legally have one in the state of Texas, because of a state law that prohibited abortions except in cases where the mother’s life was in danger. She questioned the legality of this law.

Constitutional Issue : The Constitutional issue in this case was whether a woman’s right to have an abortion was permitted by the Constitution, and whether it fit into the broad right of privacy.

Holding and Constitutional Principle : The Supreme Court held that a woman’s right to an abortion fell within the right of privacy that was clarified in Griswold v. Connecticut, and therefore was protected by the Fourteenth Amendment. Laws in 46 states were affected by this ruling. This ruling expanded the definition of privacy .

Modern Connections : This case is one of the most controversial cases to appear before the Supreme Court. Political candidates are often split along party lines - Democrats often agree with this holding and Republicans often disagree.

Short Summary: Chicago passed a handgun ban law, and several suits were filed against the city challenging the ban after another case ( District of Columbia v. Heller ). In that case, the Court had held that a DC handgun ban violated the Second Amendment. There, since the law was enacted by the federal government, the Second Amendment was applicable. 

Constitutional Issue : In this case, the applicability of the Second Amendment to the states was argued, and if the 2nd Amendment’s right to bear arms (interpreted as an individual right) also applied to the states. This involves selective incorporation!

Holding and Constitutional Principle : In its decision, the Court stated that the handgun ban was unconstitutional in a 5-4 decision. Because the right to self-defense was fundamental , the 2nd Amendment was incorporated to the states through the Fourteenth Amendment’s due process clause.

Cases Involving the Equal Protection Clause

College Board Context: “PRD-1: The Fourteenth Amendment’s equal protection clause as well as other constitutional provisions have often been used to support the advancement of equality.”

Short Summary: This is one of the most famous cases in US history. Relating to the racial segregation of schools, African American students had been denied admittance to public schools because of these segregation laws, and many argued that this was in violation of the Constitution.

Constitutional Issue : This was an issue in terms of the Equal Protection Clause of the Fourteenth Amendment. A previous case, Plessy v. Ferguson, held that segregated facilities were legal as long as the facilities were equal (called “separate but equal doctrine.”) In this case, racial segregation in public school education was argued against based on the Equal Protection Clause.

Holding and Constitutional Principle : The Court held that “separate but equal is inherently unequal,” and therefore racial segregation of public schools is unconstitutional. The segregated schools allowed by the previous Plessy case were declared unconstitutional. This had a MAJOR IMPACT on the US and required desegregation of all public schools

Judicial Review : The Supreme Court is allowed to reverse previous rulings based on the premise of judicial review. See the Marbury v. Madison case for more info about this!

Stare Decisis : The case established that this principle, which states that current courts should look to previous decisions for interpretation, will not always be upheld.

Enforced? : The Court required states to desegregate "with all deliberate speed," and when schools had not desegregated after 10 years, the Court issued another opinion requiring immediate desegregation. This is an example of how judicial decisions may not be enforced by the federal or state executive departments.

Cases Involving Federal Policy

College Board Context: “PRD-2: The impact of federal policies on campaigning and electoral rules continues to be contested by both sides of the political spectrum.”

Short Summary: The Bipartisan Campaign Reform Act of 2002 had previously banned corporations from independent political spending and direct contributions to campaigns or political parties. In 2008, Citizens United was not allowed to show an anti-Hillary Clinton movie.

Constitutional Issue : The issue here was whether the BCRA applied to nonprofits, or if the First Amendment’s free speech clause protected such political speech.

Holding and Constitutional Principle : The holding in this case was that corporations should be considered people and therefore their funding of “independent political expenditures cannot be limited.” This is considered a form of political speech , which is protected by the free speech portion of the First Amendment. 

Further Impact : This led to the development of Super PACS and a significant increase in the amount of money contributed to political campaigns.

Note : In my opinion, this is one of the hardest cases to get straight! This is one I would definitely recommend studying early-on before the exam!

Cases Involving Districting & Representation

College Board Context: “CON-3: The republican ideal in the U.S. is manifested in the structure and operation of the legislative branch.”

Short Summary: Charles Baker stated that an old law (1901) that detailed the apportionment for Tennessee’s General Assembly had been ignored, and stated that reapportionment did not take into account the significant change that the state had gone through.

Constitutional Issue : The issue here was unique, and was regarding whether the Supreme Court as a unit had the authority to hear cases that related to legislative apportionment. 

Holding and Constitutional Principle : The chief justice and the Court concluded that because of the Fourteenth Amendment issues (through equal protection) that the case seemed to address, the Supreme Court did have the authority to hear this case. 

Impact : This case opened the door to more challenges to unfair redistricting by way of the Equal Protection Clause. Eventually, it also led to the development of the one person, one vote doctrine.

Short Summary: Several North Carolina residents challenged a proposed, unusually shaped district. They believed that the only purpose of the district was that it would definitely elect African-American representatives.

Constitutional Issue : The constitutional issue here was whether racial gerrymandering took place with this district (it was very narrow) and if the district raised an Equal Protection Clause question.

Holding and Constitutional Principle : The Supreme Court held, in a majority opinion authored by Sandra Day O’Connor, that because the district was shaped in such a clearly odd way, it was enough to prove that there was a very apparent effort to separate voters racially.

Further Impact : A key fact about this case is that majority-minority districts can be constitutionally challenged if race was the sole factor in their creation.

Cases Involving Judicial Review

College Board Context: “CON-5: The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice.”

Short Summary: The 1800 election ended in a defeat for John Adams to Thomas Jefferson. Before Adams’ term ended, Congress passed the Judiciary Act of 1801 (creating new courts, adding new judges). It was an effort by John Adams to keep his own influence in federal courts even though he was leaving office (still occurs today.) His appointments to these courts, however, were not valid until the appointed judges were delivered their commissions by Jefferson’s Secretary of State. Marbury was one of the judges appointed; however, his commission was not delivered. 

Constitutional Issue : A key issue was whether the Court had the authority to order the delivery of commission, and if a federal judge could even bring the case to court.

Holding and Constitutional Principle : The Court held that although legally, the commission should have been delivered, the clause of the Judiciary Act of 1789 which enabled Marbury to bring the case to court was unconstitutional. By declaring a law made by Congress unconstitutional, the practice of judicial review was established.

How to study the required court cases?

We suggest making sure to create a study plan and set up your study space with a good environment. Then, go over each court case and quiz yourself on the details. To help with your productivity, especially during the last few days before the exam, you should use a pomodoro study timer to break up your sessions into intervals and make time for breaks. It is also hugely beneficial to study with friends so that you can motivate one another and crush the AP Gov exam together! 🙌🏾

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Facts and Case Summary — Korematsu v. U.S.

About 10 weeks after the U.S. entered World War II, President Franklin D. Roosevelt on February 19, 1942 signed Executive Order 9066. The order authorized the Secretary of War and the armed forces to remove people of Japanese ancestry from what they designated as military areas and surrounding communities in the United States. These areas were legally off limits to Japanese aliens and Japanese-American citizens.

The order set in motion the mass transportation and relocation of more than 120,000 Japanese people to sites the government called detention camps that were set up and occupied in about 14 weeks. Most of the people who were relocated lived on the West Coast and two-thirds were American citizens. In accordance with the order, the military transported them to some 26 sites in seven western states, including remote locations in Washington, Idaho, Utah, and Arizona.

Fred Korematsu, 23, was a Japanese-American citizen who did not comply with the order to leave his home and job, despite the fact that his parents had abandoned their home and their flower-nursery business in preparation for reporting to a camp.  Korematsu planned to stay behind.  He had plastic surgery on his eyes to alter his appearance; changed his name to Clyde Sarah; and claimed that he was of Spanish and Hawaiian descent.

On May 30, 1942, about six months after the Japanese attack on Pearl Harbor, the FBI arrested Korematsu for failure to report to a relocation center. After his arrest, while waiting in jail, he decided to allow the American Civil Liberties Union to represent him and make his case a test case to challenge the constitutionality of the government’s order. Korematsu was tried in federal court in San Francisco, convicted of violating military orders issued under Executive Order 9066, given five years on probation, and sent to an Assembly Center in San Bruno, CA.

Korematsu’s attorneys appealed the trial court’s decision to the U.S. Court of Appeals, which agreed with the trial court that he had violated military orders. Korematsu asked the Supreme Court of the United States to hear his case. On December 18, 1944, a divided Supreme Court ruled, in a 6-3 decision, that the detention was a “military necessity” not based on race. 

Reopening the Case

In 1983, a pro bono legal team with new evidence filed a “coram nobis” petition and re-opened the 40-year-old case in a federal district court on the basis of egregious government misconduct in falsifying the record on military necessity. The young lawyers, mostly Japanese Americans, showed that the government’s legal team had intentionally suppressed or destroyed evidence from government intelligence agencies reporting that Japanese Americans posed no military threat to the U.S. The official reports, including those from the FBI under J. Edgar Hoover, were not presented in court. On November 10, 1983, federal judge Marylyn Hall Patel overturned Korematsu’s conviction in the same San Francisco courthouse where he had been convicted as a young man.

The district court ruling cleared Korematsu’s name, but the Supreme Court decision still stood as discredited precedent, yet precedent nonetheless. In 1944, writing for the Supreme Court majority, Justice Hugo Black announced that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and subject to tests of "the most rigid scrutiny,” not all such restrictions are inherently unconstitutional. “Pressing public necessity,” he wrote, "may sometimes justify the existence of such restrictions; racial antagonism never can.”

In a strongly worded dissent, Justice Robert Jackson contended: "Korematsu ... has been convicted of an act not commonly thought a crime," he wrote. "It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived." The nation's wartime security concerns, he contended, were not wholly adequate to strip Korematsu and the other internees of their constitutionally protected civil rights.

Another dissenting Justice, Frank Murphy, called the government’s mass exclusion order “the legalization of racism” that violated the Equal Protection Clause of the Fourteenth Amendment. He compared the exclusion order to the “abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. He concluded that the exclusion order violated the Fourteenth Amendment by “fall[ing] into the ugly abyss of racism.”

Procedural History

Lower court.

U.S. District Court, Northern District of California

Lower court held: Korematsu was convicted of violating an exclusion order by the military.

Ninth Circuit Court of Appeals

Lower court held: Upheld the trial court’s decision. Conviction upheld.

140 F.2d 289 (9th Cir. 1944)

Supreme Court Ruling

Affirmed the lower courts. Conviction upheld.

• Supreme Court vote: 6-3
• Argued: October 11-12, 1944
• Decided: December 18, 1944

Majority opinion written by: Justice Black

Majority: Conviction affirmed. The Supreme Court ruled that the evacuation order violated by Korematsu was valid, and it was not necessary to address the constitutional racial discrimination issues in this case.

Concurring Opinion Written by: Justice Frankfurter

Concurrence: The constitutional issues should be addressed, but in evaluating them, it is clear that the “martial necessity arising from the danger of espionage and sabotage” warranted the military’s evacuation order. Conviction affirmed

Dissenting opinion written by: Justice Jackson

In a strongly worded dissent, Justice Robert Jackson contended: "Korematsu ... has been convicted of an act not commonly thought a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived." The nation's wartime security concerns, he contended, were not adequate to strip Korematsu and the other internees of their constitutionally protected civil rights.

Justice Jackson called the exclusion order “the legalization of racism” that violated the Equal Protection Clause of the Fourteenth Amendment. He compared the exclusion order to the “abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.  He concluded that the exclusion order violated the Fourteenth Amendment by “fall[ing] into the ugly abyss of racism.”

Was the military’s exclusion order justified?

The majority opinion ruled that the court should not address the entirety of the order under which Korematsu was convicted, which included provisions requiring citizens to report to assembly and relocation centers. The majority found it necessary only to rule on the validity of the specific provision under which Korematsu was convicted: the provision requiring him to leave the designated area.

Because the order applied only to people who were Japanese or of Japanese descent, it was subject to the “most rigid scrutiny.” The majority found that although the exclusion of citizens from their homes is generally an impermissible use of government authority, there is an exception where there is “grave [  ] imminent danger to the public safety” as long as there is a definition and close relationship between the government’s actions and the prevention against espionage and sabotage. The majority ruled that there was sufficient danger and a sufficient relationship between the order and the prevention of the danger to justify requiring Korematsu to evacuate.  The majority said the order was valid.

The dissenters disagreed.  They put forth their position that the order should have been considered as a whole, and the Court should have considered the other contemporaneous orders, all of which, when considered together resulted in the imprisonment of U.S. citizens in what were essentially concentration camps, based only on their race. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

4.2 Securing Basic Freedoms

Learning objectives.

By the end of this section, you will be able to:

• Identify the liberties and rights guaranteed by the first four amendments to the Constitution
• Explain why in practice these rights and liberties are limited
• Explain why interpreting some amendments has been controversial

We can broadly divide the provisions of the Bill of Rights into three categories. The First, Second, Third, and Fourth Amendments protect basic individual freedoms; the Fourth (partly), Fifth, Sixth, Seventh, and Eighth protect people suspected or accused of criminal activity or facing civil litigation; and the Ninth and Tenth, are consistent with the framers’ view that the Bill of Rights is not necessarily an exhaustive list of all the rights people have and guarantees a role for state as well as federal government ( Figure 4.5 ).

The First Amendment protects the right to freedom of religious conscience and practice and the right to free expression, particularly of political and social beliefs. The Second Amendment—perhaps the most controversial today—protects the right to defend yourself in your home or other property, and, until the establishment of the National Guard, the collective right to self-defense as part of a militia. The Third Amendment prohibits the government from commandeering people’s homes to house soldiers, particularly in peacetime. Finally, the Fourth Amendment prevents the government from searching one's person or property or taking evidence without a warrant issued by a judge, with certain exceptions.

THE FIRST AMENDMENT

The First Amendment is perhaps the most famous provision of the Bill of Rights. It is arguably also the most extensive, because it guarantees both religious freedoms and the right to express your views in public. Specifically, the First Amendment says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Given the broad scope of this amendment, it is helpful to break it into its two major parts.

The first portion deals with religious freedom. However, it actually protects two related sorts of freedom: first, it protects people from having a set of religious beliefs imposed on them by the government, and second, it protects people from having their own religious beliefs restricted by government authorities.

The Establishment Clause

The first of these two freedoms is known as the establishment clause . Congress is prohibited from creating or promoting a state-sponsored religion (this now includes the states). When the United States was founded, most countries around the world had an established church or religion—an officially sponsored set of religious beliefs and values. In Europe, bitter wars were fought between and within states, often because the established church of one territory was in conflict with that of another. Wars and civil strife were common, particularly between states with Protestant and Catholic churches that had differing interpretations of Christianity. Even today, the legacy of these wars remains, most notably in Ireland, where complications from Brexit have rekindled tensions between a mostly Catholic south and a largely Protestant north that have been simmering for nearly a century.

Many settlers in the United States came to this continent as refugees from such wars; others came to find a place where they could follow their own religion with like-minded people in relative peace. Even if the early United States had wanted to establish a single national religion, the diversity of religious beliefs within and between the colonies would have made this quite impossible. Nonetheless the differences were small; most people were of European origin and professed some form of Christianity (although in private some of the founders, most notably Thomas Jefferson, Thomas Paine, and Benjamin Franklin, held what today would be seen as more pluralistic Unitarian or deistic views). So for much of U.S. history, the establishment clause was not particularly important—the vast majority of citizens were Protestant Christians of some form, and since the federal government was relatively uninvolved in the day-to-day lives of the people, there was little opportunity for conflict. That said, there were some citizenship and office-holding restrictions on Jews within some of the states.

Worry about state sponsorship of religion in the United States began to reemerge in the latter part of the nineteenth century. An influx of immigrants from Ireland and eastern and southern Europe brought large numbers of Catholics. Fearing the new immigrants and their children would not assimilate, states passed laws forbidding government aid to religious schools. New religious organizations, such as The Church of Jesus Christ of Latter-day Saints, Seventh-day Adventists, Jehovah’s Witnesses, and many others, also emerged, blending aspects of Protestant beliefs with other ideas and teachings at odds with the more traditional Protestant churches of the era. At the same time, public schooling was beginning to take root on a wide scale. Since most states had traditional Protestant majorities and most state officials were Protestants themselves, the public school curriculum incorporated many Protestant features; at times, these features would come into conflict with the beliefs of children from other Christian sects or from other religious traditions.

The establishment clause today tends to be interpreted a bit more broadly than in the past; it not only forbids the creation of a “Church of the United States” or “Church of Ohio” it also forbids the government from favoring one set of religious beliefs over others or favoring religion (of any variety) over non-religion. Thus, the government cannot promote, say, Islamic beliefs over Sikh beliefs or belief in God over atheism or agnosticism ( Figure 4.6 ).

The key question that faces the courts is whether the establishment clause should be understood as imposing, in Thomas Jefferson’s words, “a wall of separation between church and state.” In a 1971 case known as Lemon v. Kurtzman , the Supreme Court established the Lemon test for deciding whether a law or other government action that might promote a particular religious practice should be allowed to stand. 13 The Lemon test has three criteria that must be satisfied for such a law or action to be found constitutional and remain in effect:

1. The action or law must not lead to excessive government entanglement with religion; in other words, policing the boundary between government and religion should be relatively straightforward and not require extensive effort by the government.

2. The action or law cannot either inhibit or advance religious practice; it should be neutral in its effects on religion.

3. The action or law must have some secular purpose ; there must be some non-religious justification for the law.

For example, imagine your state decides to fund a school voucher program that allows children to attend private and parochial schools at public expense; the vouchers can be used to pay for school books and transportation to and from school. Would this voucher program be constitutional?

Let’s start with the secular-purpose prong of the test. Educating children is a clear, non-religious purpose, so the law has a secular purpose. The law would neither inhibit nor advance religious practice, so that prong would be satisfied. The remaining question—and usually the one on which court decisions turn—is whether the law leads to excessive government entanglement with religious practice. Given that transportation and school books generally have no religious purpose, there is little risk that paying for them would lead the state to much entanglement with religion. The decision would become more difficult if the funding were unrestricted in use or helped to pay for facilities or teacher salaries; if that were the case, it might indeed be used for a religious purpose, and it would be harder for the government to ensure that it wasn’t without audits or other investigations that could lead to too much government entanglement with religion.

The use of education as an example is not an accident; in fact, many of the court’s cases dealing with the establishment clause have involved education, particularly public education, because school-age children are considered a special and vulnerable population. Perhaps no subject affected by the First Amendment has been more controversial than the issue of prayer in public schools. Discussion about school prayer has been particularly fraught because in many ways it appears to bring the two religious liberty clauses into conflict with each other. The free exercise clause, discussed below, guarantees the right of individuals to practice their religion without government interference—and while the rights of children are not as extensive in all areas as those of adults, the courts have consistently ruled that the free exercise clause’s guarantee of religious freedom applies to children as well.

At the same time, however, government actions that require or encourage particular religious practices might infringe upon children’s rights to follow their own religious beliefs and thus, in effect, be unconstitutional establishments of religion. For example, a teacher, an athletic coach, or even a student reciting a prayer in front of a class or leading students in prayer as part of the organized school activities constitutes an illegal establishment of religion. 14 Yet a school cannot prohibit voluntary, non-disruptive prayer by its students, because that would impair the free exercise of religion. So although the blanket statement that “prayer in schools is illegal” or unconstitutional is incorrect, the establishment clause does limit official endorsement of religion, including prayers organized or otherwise facilitated by school authorities, even as part of off-campus or extracurricular activities. 15

But some laws that may appear to establish certain religious practices are allowed. For example, the courts have permitted religiously inspired blue law s that limit working hours or even shutter businesses on Sunday, the Christian day of rest, because by allowing people to practice their (Christian) faith, such rules may help ensure the “health, safety, recreation, and general well-being” of citizens. They have allowed restrictions on the sale of alcohol and sometimes other goods on Sunday for similar reasons. Such laws in Bergen County, New Jersey, and especially its borough of Paramus, shutter many retail stores every Sunday, despite Bergen having one of the largest concentrations of retail space in the nation and five large enclosed shopping malls. While various political figures, including Chris Christie, have proposed repealing the laws, town and county officials have vowed to keep them in place as a "quality of life" element. Many citizens support them, while others cite the difficulty in doing their own shopping and the impact on smaller retailers in their rationale for eliminating the restrictions.

The meaning of the establishment clause has been controversial at times because, as a matter of course, government officials acknowledge that we live in a society with vigorous religious practice where most people believe in God—even if we disagree on what God is. Disputes often arise over how much the government can acknowledge this widespread religious belief. The courts have generally allowed for a certain tolerance of what is described as ceremonial deism, an acknowledgement of God or a creator that generally lacks any substantive religious content. For example, the national motto “In God We Trust,” which appears on our coins and paper money ( Figure 4.7 ), is seen as more an acknowledgment that most citizens believe in God than any serious effort by government officials to promote religious belief and practice. This reasoning has also been used to permit the inclusion of the phrase “under God” in the Pledge of Allegiance—a change that came about during the early years of the Cold War as a means of contrasting the United States with the “godless” Soviet Union.

In addition, the courts have allowed some religiously motivated actions by government agencies, such as clergy delivering prayers to open city council meetings and legislative sessions, on the presumption that—unlike school children—adult participants can distinguish between the government’s allowing someone to speak and endorsing that person’s speech. Yet, while some displays of religious codes (e.g., Ten Commandments) are permitted in the context of showing the evolution of law over the centuries ( Figure 4.7 ), in other cases, these displays have been removed after state supreme court rulings. In Oklahoma, the courts ordered the removal of a Ten Commandments sculpture at the state capitol when other groups, including Satanists and the Church of the Flying Spaghetti Monster, attempted to get their own sculptures allowed there.

The Free Exercise Clause

The free exercise clause , on the other hand, limits the ability of the government to control or restrict religious practices. This portion of the First Amendment regulates not the government’s promotion of religion, but rather government suppression of religious beliefs and practices. Much of the controversy surrounding the free exercise clause reflects the way laws or rules that apply to everyone might apply to people with particular religious beliefs. For example, can a Jewish police officer whose religious belief, if followed strictly, requires them to observe Shabbat be compelled to work on a Friday night or during the day on Saturday? Or must the government accommodate this religious practice, even if it means the general law or rule in question is not applied equally to everyone?

In the 1930s and 1940s, cases involving Jehovah’s Witnesses demonstrated the difficulty of striking the right balance. In addition to following their church’s teaching that they should not participate in military combat, members refuse to participate in displays of patriotism, including saluting the flag and reciting the Pledge of Allegiance, and they regularly engage in door-to-door evangelism to recruit converts. These activities have led to frequent conflict with local authorities. Jehovah’s Witness children were punished in public schools for failing to salute the flag or recite the Pledge of Allegiance, and members attempting to evangelize were arrested for violating laws against door-to-door solicitation of customers. In early legal challenges brought by Jehovah’s Witnesses, the Supreme Court was reluctant to overturn state and local laws that burdened their religious beliefs. 16 However, in later cases, the court was willing to uphold the rights of Jehovah’s Witnesses to proselytize and refuse to salute the flag or recite the Pledge. 17

The rights of conscientious objector s —individuals who claim the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion—have also been controversial, although many conscientious objectors have contributed service as non-combatant medics during wartime. To avoid serving in the Vietnam War, many people claimed to have a conscientious objection to military service on the basis that they believed this particular war was unwise or unjust. However, the Supreme Court ruled in Gillette v. United States that to claim to be a conscientious objector, a person must be opposed to serving in any war, not just some wars. 18

Establishing a general framework for deciding whether a religious belief can trump general laws and policies has been a challenge for the Supreme Court. In the 1960s and 1970s, the court decided two cases in which it laid out a general test for deciding similar cases in the future. In both Sherbert v. Verner , a case dealing with unemployment compensation, and Wisconsin v. Yoder , which dealt with the right of Amish parents to homeschool their children, the court said that for a law to be allowed to limit or burden a religious practice, the government must meet two criteria. 19 It must demonstrate both that it had a “compelling governmental interest” in limiting that practice and that the restriction was “narrowly tailored.” In other words, it must show there was a very good reason for the law in question and that the law was the only feasible way of achieving that goal. This standard became known as the Sherbert test . Since the burden of proof in these cases was on the government, the Supreme Court made it very difficult for the federal and state governments to enforce laws against individuals that would infringe upon their religious beliefs.

In 1990, the Supreme Court made a controversial decision substantially narrowing the Sherbert test in Employment Division v. Smith , more popularly known as “the peyote case.” 20 This case involved two men who were members of the Native American Church, a religious organization that uses the hallucinogenic peyote plant as part of its sacraments. After being arrested for possession of peyote, the two men were fired from their jobs as counselors at a private drug rehabilitation clinic. When they applied for unemployment benefits, the state refused to pay on the basis that they had been dismissed for work-related reasons. The men appealed the denial of benefits and were initially successful, since the state courts applied the Sherbert test and found that the denial of unemployment benefits burdened their religious beliefs. However, the Supreme Court ruled in a 6–3 decision that the “compelling governmental interest” standard should not apply; instead, so long as the law was not designed to target a person’s religious beliefs in particular, it was not up to the courts to decide that those beliefs were more important than the law in question.

On the surface, a case involving the Native American Church seems unlikely to arouse much controversy. But because it replaced the Sherbert test with one that allowed more government regulation of religious practices, followers of other religious traditions grew concerned that state and local laws, even ones neutral on their face, might be used to curtail their religious practices. In 1993, in response to this decision, Congress passed a law known as the Religious Freedom Restoration Act (RFRA), which was followed in 2000 by the Religious Land Use and Institutionalized Persons Act after part of the RFRA was struck down by the Supreme Court. In addition, since 1990, twenty-one states have passed state RFRAs that include the Sherbert test in state law, and state court decisions in eleven states have enshrined the Sherbert test’s compelling governmental interest interpretation of the free exercise clause into state law. 21

However, the RFRA itself has not been without its critics. While it has been relatively uncontroversial as applied to the rights of individuals, debate has emerged about whether businesses and other groups can be said to have religious liberty. In explicitly religious organizations, such as an Orthodox Union congregation or the Roman Catholic Church, it is fairly obvious members have a meaningful, shared religious belief. But the application of the RFRA has become more problematic in businesses and non-profit organizations whose owners or organizers may share a religious belief while the organization has some secular, non-religious purpose.

Such a conflict emerged in the 2014 Supreme Court case known as Burwell v. Hobby Lobby . 22 The Hobby Lobby chain of stores sells arts and crafts merchandise at hundreds of stores and its founder, David Green , is a fundamentalist Christian whose beliefs include opposition to abortion and contraception. Consistent with these beliefs, he used his business to object to a provision of the Patient Protection and Affordable Care Act (ACA or Obamacare) requiring employer-backed insurance plans to include no-charge access to the morning-after pill, a form of emergency contraception, arguing that this requirement infringed on his conscience. Based in part on the federal RFRA, the Supreme Court agreed 5–4 with Green and Hobby Lobby’s position and said that Hobby Lobby and other closely held businesses did not have to provide employees free access to emergency contraception or other birth control if doing so would violate the religious beliefs of the business’ owners, because there were other less restrictive ways the government could ensure access to these services for Hobby Lobby’s employees (e.g., paying for them directly).

In 2015, state RFRAs became controversial when individuals and businesses that provided wedding services (e.g., catering and photography) were compelled to provide these for same-sex weddings in states where the practice had been newly legalized ( Figure 4.8 ). Proponents of state RFRA laws argued that people and businesses ought not be compelled to endorse practices that their religious beliefs hold to be immoral or indecent. They also indicated concerns that clergy might be compelled to officiate same-sex marriages against their religion’s teachings. Opponents of RFRA laws argued that individuals and businesses should be required, per Obergefell v. Hodges , to serve same-sex marriages on an equal basis as a matter of ensuring the civil rights of gay and lesbian people, just as they would be obliged to cater or photograph an interracial marriage. 23 In 2023, the Supreme Court ruled that a Colorado graphic artist was not obligated to create wedding websites for same-sex couples, despite a state law barring discrimination based on sexual orientation. 24 It should be noted that religious organizations and clergy are not homogeneous in their view of marriage. For example, same-sex marriage is supported by Episcopalians, a sizable number of Methodists, and many leaders in the Jewish and Hindu faiths. 25

Despite ongoing controversy, however, the courts have consistently found some public interests sufficiently compelling to override the free exercise clause. For example, since the late nineteenth century, the courts have consistently held that people’s religious beliefs do not exempt them from the general laws against polygamy, drug use, or human sacrifice. Yet, the public interest did not trump individual rights during the COVID-19 pandemic, when the Supreme Court overturned California's ban on indoor gatherings. 26 Other potential acts in the name of religion that are also out of the question are drug use and human sacrifice.

Freedom of Expression

Although the remainder of the First Amendment protects four distinct rights—free speech, press, assembly, and petition—we generally think of these rights today as encompassing a right to freedom of expression , particularly since the world’s technological evolution has blurred the lines between oral and written communication (i.e., speech and press) in the centuries since the First Amendment was written and adopted.

Controversies over freedom of expression were rare until the 1900s, even though government censorship was quite common. For example, during the Civil War, the Union post office refused to deliver newspapers that opposed the war or sympathized with the Confederacy, while allowing pro-war newspapers to be mailed. The emergence of photography and movies, in particular, led to new public concerns about morality, causing both state and federal politicians to censor lewd and otherwise improper content. At the same time, writers became more ambitious in their subject matter by including explicit references to sex and using obscene language, leading to government censorship of books and magazines.

Censorship reached its height during World War I. The United States was swept up in two waves of hysteria. Anti-German feeling was provoked by the actions of Germany and its allies leading up to the war, including the sinking of the RMS Lusitania and the Zimmerman Telegram, an effort by the Germans to conclude an alliance with Mexico against the United States. This concern was compounded in 1917 by the Bolshevik revolution against the more moderate interim government of Russia; the leaders of the Bolsheviks, most notably Vladimir Lenin, Leon Trotsky, and Joseph Stalin, withdrew from the war against Germany and called for communist revolutionaries to overthrow the capitalist, democratic governments in western Europe and North America.

Americans who vocally supported the communist cause or opposed the war often found themselves in jail. In Schenck v. United States , the Supreme Court ruled that people encouraging young men to dodge the draft could be imprisoned for doing so, arguing that recommending that people disobey the law was tantamount to “falsely shouting fire in a theatre and causing a panic” and thus presented a “clear and present danger” to public order. 27 Similarly, communists and other revolutionary anarchists and socialists during the Red Scare after the war were prosecuted under various state and federal laws for supporting the forceful or violent overthrow of government. This general approach to political speech remained in place for the next fifty years.

In the 1960s, however, the Supreme Court’s rulings on free expression became more liberal, in response to the Vietnam War and the growing antiwar movement. In a 1969 case involving the Ku Klux Klan, Brandenburg v. Ohio , the Supreme Court found that only speech or writing that constituted a direct call or plan to imminent lawless action, an illegal act in the immediate future, could be suppressed; the mere advocacy of a hypothetical revolution was not enough. 28 The Supreme Court also found that various forms of symbolic speech —wearing clothing like an armband that carried a political symbol or raising a fist in the air, for example—were subject to the same protections as written and spoken communication. More recently, symbolic speech related to the U.S. flag has engendered intense debate. Whether one should kneel during the national anthem, or ought to be able to burn the U.S. flag, are key questions.

Burning the U.S. Flag

Perhaps no act of symbolic speech has been as controversial in U.S. history as the burning of the flag ( Figure 4.9 ). Citizens tend to revere the flag as a unifying symbol of the country in much the same way most people in Britain would treat the reigning queen (or king). States and the federal government have long had laws protecting the flag from being desecrated—defaced, damaged, or otherwise treated with disrespect. Perhaps in part because of these laws, people who have wanted to drive home a point in opposition to U.S. government policies have found desecrating the flag a useful way to gain public and press attention to their cause.

One such person was Gregory Lee Johnson , a member of various pro-communist and antiwar groups. In 1984, as part of a protest near the Republican National Convention in Dallas, Texas, Johnson set fire to a U.S. flag that another protestor had torn from a flagpole. He was arrested, charged with “desecration of a venerated object” (among other offenses), and eventually convicted of that offense. However, in 1989, the Supreme Court decided in Texas v. Johnson that burning the flag was a form of symbolic speech protected by the First Amendment and found the law, as applied to flag desecration, to be unconstitutional. 29

This court decision was strongly criticized, and Congress responded by passing a federal law, the Flag Protection Act , intended to overrule it; the act, too, was struck down as unconstitutional in 1990. 30 Since then, Congress has tried and failed on several occasions to propose constitutional amendments allowing the states and federal government to re-criminalize flag desecration.

Should we amend the Constitution to allow Congress or the states to pass laws protecting the U.S. flag from desecration? Should we protect other national symbols as well, such as standing for the national anthem? Why or why not?

Freedom of the press is an important component of the right to free expression as well. In Near v. Minnesota , an early case regarding press freedoms, the Supreme Court ruled that the government generally could not engage in prior restraint ; that is, states and the federal government could not in advance prohibit someone from publishing something without a very compelling reason. 31 This standard was reinforced in 1971 in the Pentagon Papers case, in which the Supreme Court found that the government could not prohibit the New York Times and Washington Post newspapers from publishing the Pentagon Papers . 32 These papers included materials from a secret history of the Vietnam War that had been compiled by the military. More specifically, the papers were compiled at the request of Secretary of Defense Robert McNamara and provided a study of U.S. political and military involvement in Vietnam from 1945 to 1967. Daniel Ellsberg famously released passages of the Papers to the press to show that the United States had secretly enlarged the scope of the war by bombing Cambodia and Laos among other deeds while lying to the American public about doing so.

Although people who leak secret information to the media can still be prosecuted and punished, this does not generally extend to reporters and news outlets that pass that information on to the public. The Edward Snowden case is another good case in point. Snowden himself, rather than those involved in promoting the information that he shared, is the object of criminal prosecution.

Furthermore, the courts have recognized that government officials and other public figures might try to silence press criticism and avoid unfavorable news coverage by threatening a lawsuit for defamation of character. In the 1964 New York Times v. Sullivan case, the Supreme Court decided that public figures needed to demonstrate not only that a negative press statement about them was untrue but also that the statement was published or made with either malicious intent or “reckless disregard” for the truth. 33 This ruling made it much harder for politicians to silence potential critics or to bankrupt their political opponents through the courts.

The right to freedom of expression is not absolute; several key restrictions limit our ability to speak or publish opinions under certain circumstances. We have seen that the Constitution protects most forms of offensive and unpopular expression, particularly political speech; however, incitement of a criminal act, “fighting words,” and genuine threats are not protected. So, for example, you can’t point at someone in front of an angry crowd and shout, “Let’s beat up that guy!” And the Supreme Court has allowed laws that ban threatening symbolic speech, such as burning a cross on the lawn of an African American family’s home ( Figure 4.10 ). 34 Finally, as we’ve just seen, defamation of character—whether in written form (libel) or spoken form (slander)—is not protected by the First Amendment, so people who are subject to false accusations can sue to recover damages, although criminal prosecutions of libel and slander are uncommon.

Another key exception to the right to freedom of expression is obscenity , acts or statements that are extremely offensive under current societal standards. Defining obscenity has been something of a challenge for the courts; Supreme Court Justice Potter Stewart famously said of obscenity, having watched pornography in the Supreme Court building, “I know it when I see it.” Into the early twentieth century, written work was frequently banned as being obscene, including works by noted authors such as James Joyce and Henry Miller, although today it is rare for the courts to uphold obscenity charges for written material alone. In 1973, the Supreme Court established the Miller test for deciding whether something is obscene: “(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 35 However, the application of this standard has at times been problematic. In particular, the concept of “contemporary community standards” raises the possibility that obscenity varies from place to place; many people in New York or San Francisco might not bat an eye at something people in Memphis or Salt Lake City would consider offensive. The one form of obscenity that has been banned almost without challenge is child pornography, although even in this area the courts have found exceptions.

The courts have allowed censorship of less-than-obscene content when it is broadcast over the airwaves, particularly when it is available for anyone to receive. In general, these restrictions on indecency—a quality of acts or statements that offend societal norms or may be harmful to minors—apply only to radio and television programming broadcast when children might be in the audience, although most cable and satellite channels follow similar standards for commercial reasons. An infamous case of televised indecency occurred during the halftime show of the 2004 Super Bowl, during a performance by singer Janet Jackson in which a part of her clothing was removed by fellow performer Justin Timberlake, revealing her right breast. The network responsible for the broadcast, CBS, was ultimately presented with a fine of $550,000 by the Federal Communications Commission, the government agency that regulates television broadcasting. However, CBS was not ultimately required to pay.

On the other hand, in 1997, the NBC network showed a broadcast of Schindler’s List , a film depicting events during the Holocaust in Nazi Germany, without any editing, so it included graphic nudity and depictions of violence. NBC was not fined or otherwise punished, suggesting there is no uniform standard for indecency. Similarly, in the 1990s Congress compelled television broadcasters to implement a television ratings system, enforced by a “V-Chip” in televisions and cable boxes, so parents could better control the television programming their children might watch. However, similar efforts to regulate indecent content on the Internet to protect children from pornography have largely been struck down as unconstitutional. This outcome suggests that technology has created new avenues for obscene material to be disseminated. The Children’s Internet Protection Act , however, requires K–12 schools and public libraries receiving Internet access using special E-rate discounts to filter or block access to obscene material and other material deemed harmful to minors, with certain exceptions.

The courts have also allowed laws that forbid or compel certain forms of expression by businesses, such as laws that require the disclosure of nutritional information on food and beverage containers and warning labels on tobacco products ( Figure 4.11 ). The federal government requires the prices advertised for airline tickets to include all taxes and fees. Many states regulate advertising by lawyers. And, in general, false or misleading statements made in connection with a commercial transaction can be illegal if they constitute fraud.

Furthermore, the courts have ruled that, although public school officials are government actors, the First Amendment freedom of expression rights of children attending public schools are somewhat limited. In particular, in Tinker v. Des Moines (1969) and Hazelwood v. Kuhlmeier (1988), the Supreme Court has upheld restrictions on speech that creates “substantial interference with school discipline or the rights of others” 36 or is “reasonably related to legitimate pedagogical concerns.” 37 For example, the content of school-sponsored activities like school newspapers and speeches delivered by students can be controlled, either for the purposes of instructing students in proper adult behavior or to deter conflict between students.

Free expression includes the right to assemble peaceably and the right to petition government officials. This right even extends to members of groups whose views most people find abhorrent, such as American Nazis and the vehemently anti-LGBTQ Westboro Baptist Church , whose members have become known for their protests at the funerals of U.S. soldiers who have died fighting in the war on terror. 38 Free expression—although a broad right—is subject to certain constraints to balance it against the interests of public order. In particular, the nature, place, and timing of protests—but not their substantive content—are subject to reasonable limits. The courts have ruled that while people may peaceably assemble in a place that is a public forum, not all public property is a public forum. For example, the inside of a government office building or a college classroom—particularly while someone is teaching—is not generally considered a public forum.

Rallies and protests on land that has other dedicated uses, such as roads and highways, can be limited to groups that have secured a permit in advance, and those organizing large gatherings may be required to give sufficient notice so government authorities can ensure there is enough security available. However, any such regulation must be viewpoint-neutral; the government may not treat one group differently than another because of its opinions or beliefs. For example, the government can’t permit a rally by a group that favors a government policy but forbid opponents from staging a similar rally. Finally, there have been controversial situations in which government agencies have established free-speech zones for protesters during political conventions, presidential visits, and international meetings in areas that are arguably selected to minimize their public audience or to ensure that the subjects of the protests do not have to encounter the protesters.

THE SECOND AMENDMENT

There has been increased conflict over the Second Amendment in recent years due to school shootings and gun violence. As a result, gun rights have become a highly charged political issue. The text of the Second Amendment is among the shortest of those included in the Constitution:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

But the relative simplicity of its text has not kept it from controversy; arguably, the Second Amendment has become controversial in large part because of its text. Is this amendment merely a protection of the right of the states to organize and arm a “well regulated militia” for civil defense, or is it a protection of a “right of the people” as a whole to individually bear arms?

Before the Civil War, this would have been a nearly meaningless distinction. In most states at that time, White males of military age were considered part of the militia, liable to be called for service to put down rebellions or invasions, and the right “to keep and bear Arms” was considered a common-law right inherited from English law that predated the federal and state constitutions. The Constitution was not seen as a limitation on state power, and since the states expected all free men to keep arms as a matter of course, what gun control there was mostly revolved around ensuring enslaved people (and their abolitionist allies) didn’t have guns.

With the beginning of selective incorporation after the Civil War, debates over the Second Amendment were reinvigorated. In the meantime, as part of their Black codes designed to reintroduce most of the trappings of slavery, several southern states adopted laws that restricted the carrying and ownership of weapons by formerly enslaved people. Despite acknowledging a common-law individual right to keep and bear arms, in 1876 the Supreme Court declined, in United States v. Cruickshank , to intervene to ensure the states would respect it. 39

In the following decades, states gradually began to introduce laws to regulate gun ownership. Federal gun control laws began to be introduced in the 1930s in response to organized crime, with stricter laws that regulated most commerce and trade in guns coming into force in the wake of the street protests of the 1960s. In the early 1980s, following an assassination attempt on President Ronald Reagan, laws requiring background checks for prospective gun buyers were passed. During this period, the Supreme Court’s decisions regarding the meaning of the Second Amendment were ambiguous at best. In United States v. Miller , the Supreme Court upheld the 1934 National Firearms Act ’s prohibition of sawed-off shotguns, largely on the basis that possession of such a gun was not related to the goal of promoting a “well regulated militia.” 40 This finding was generally interpreted as meaning that the Second Amendment protected the right of the states to organize a militia, rather than an individual right, and thus lower courts generally found most firearm regulations—including some city and state laws that virtually outlawed the private ownership of firearms—to be constitutional.

However, in 2008, in a narrow 5–4 decision on District of Columbia v. Heller , the Supreme Court found that at least some gun control laws did violate the Second Amendment and that this amendment does protect an individual’s right to keep and bear arms, at least in some circumstances—in particular, “for traditionally lawful purposes, such as self-defense within the home.” 41 Because the District of Columbia is not a state, this decision immediately applied the right only to the federal government and territorial governments. Two years later, in McDonald v. Chicago , the Supreme Court overturned the Cruickshank decision (5–4) and again found that the right to bear arms was a fundamental right incorporated against the states, meaning that state regulation of firearms might, in some circumstances, be unconstitutional. In 2015, however, the Supreme Court allowed several of San Francisco’s strict gun control laws to remain in place, suggesting that—as in the case of rights protected by the First Amendment—the courts will not treat gun rights as absolute ( Figure 4.12 ). 42 Elsewhere in the political system, the gun issue remains similarly unsettled. However, in the wake of especially traumatic shootings at a Las Vegas outdoor concert and at a school in Parkland, Florida, there has been increased activism around gun control and community safety, especially among the young. 43

THE THIRD AMENDMENT

The Third Amendment says in full:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Most people consider this provision of the Constitution obsolete and unimportant. However, it is worthwhile to note its relevance in the context of the time: citizens remembered having their cities and towns occupied by British soldiers and mercenaries during the Revolutionary War, and they viewed the British laws that required the colonists to house soldiers particularly offensive, to the point that it had been among the grievances listed in the Declaration of Independence.

Today it seems unlikely the federal government would need to house military forces in civilian lodgings against the will of property owners or tenants; however, perhaps in the same way we consider the Second and Fourth amendments, we can think of the Third Amendment as reflecting a broader idea that our homes lie within a “zone of privacy” that government officials should not violate unless absolutely necessary.

THE FOURTH AMENDMENT

The Fourth Amendment sits at the boundary between general individual freedoms and the rights of those suspected of crimes. We saw earlier that perhaps it reflects James Madison’s broader concern about establishing an expectation of privacy from government intrusion at home. Another way to think of the Fourth Amendment is that it protects us from overzealous efforts by law enforcement to root out crime by ensuring that police have good reason before they intrude on people’s lives with criminal investigations.

The text of the Fourth Amendment is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The amendment places limits on both searches and seizures : Searches are efforts to locate documents and contraband. Seizures are the taking of these items by the government for use as evidence in a criminal prosecution (or, in the case of a person, the detention or taking of the person into custody).

In either case, the amendment indicates that government officials are required to apply for and receive a search warrant prior to a search or seizure; this warrant is a legal document, signed by a judge, allowing police to search and/or seize persons or property. Since the 1960s, however, the Supreme Court has issued a series of rulings limiting the warrant requirement in situations where a person can be said to lack a “reasonable expectation of privacy” outside the home. Police can also search and/or seize people or property without a warrant if the owner or renter consents to the search, if there is a reasonable expectation that evidence may be destroyed or tampered with before a warrant can be issued (i.e., exigent circumstances), or if the items in question are in plain view of government officials.

Furthermore, the courts have found that police do not generally need a warrant to search the passenger compartment of a car ( Figure 4.13 ), or to search people entering the United States from another country. 44 When a warrant is needed, law enforcement officers do not need enough evidence to secure a conviction, but they must demonstrate to a judge that there is probable cause to believe a crime has been committed or evidence will be found. Probable cause is the legal standard for determining whether a search or seizure is constitutional or a crime has been committed; it is a lower threshold than the standard of proof at a criminal trial.

Critics have argued that this requirement is not very meaningful because law enforcement officers are almost always able to get a search warrant when they request one. On the other hand, since we wouldn’t expect the police to waste their time or a judge’s time trying to get search warrants that are unlikely to be granted, perhaps the high rate at which they get them should not be so surprising. The use of "no-knock" warrants based on the premise that a suspect would destroy drug evidence has recently been curtailed after the wrongful killing of Breonna Taylor by police serving such a warrant. 45 , 46

What happens if the police conduct an illegal search or seizure without a warrant and find evidence of a crime? In the 1961 Supreme Court case Mapp v. Ohio , the court decided that evidence obtained without a warrant that didn’t fall under one of the exceptions mentioned above could not be used as evidence in a state criminal trial, giving rise to the broad application of what is known as the exclusionary rule , which was first established in 1914 on a federal level in Weeks v. United States . 47 The exclusionary rule doesn’t just apply to evidence found or to items or people seized without a warrant (or falling under an exception noted above); it also applies to any evidence developed or discovered as a result of the illegal search or seizure.

For example, if police search your home without a warrant, find bank statements showing large cash deposits on a regular basis, and discover you are engaged in some other crime in which they were previously unaware (e.g., blackmail, drugs, or prostitution), they can neither use the bank statements as evidence of criminal activity, nor prosecute you for the crimes they discovered during the illegal search. This extension of the exclusionary rule is sometimes called the “fruit of the poisonous tree,” because just as the metaphorical tree (i.e., the original search or seizure) is poisoned, so is anything that grows out of it. 48

However, like the requirement for a search warrant, the exclusionary rule does have exceptions. The courts have allowed evidence to be used that was obtained without the necessary legal procedures in circumstances where police executed warrants they believed were correctly granted but in fact were not (“good faith” exception), and when the evidence would have been found anyway had they followed the law (“inevitable discovery”).

The requirement of probable cause also applies to arrest warrants. A person cannot generally be detained by police or taken into custody without a warrant, although most states allow police to arrest someone suspected of a felony crime without a warrant so long as probable cause exists, and police can arrest people for minor crimes or misdemeanors they have witnessed themselves.

The Supreme Court's 2012 and 2018 decisions in United States v. Jones and Carpenter v. United States extended the prohibition of illegal search and seizure to warrantless location tracking, either by installing a GPS device, as in the Jones case, or by accessing that information provided to cellular companies, as in Carpenter .

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389 U.S. 347 (1967)

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384 U.S. 436 (1966)

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377 U.S. 533 (1964)

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376 U.S. 254 (1964)

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374 U.S. 398 (1963)

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372 U.S. 335 (1963)

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370 U.S. 421 (1962)

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367 U.S. 643 (1961)

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354 U.S. 234 (1957)

Brown v. Board of Education of Topeka

347 U.S. 483 (1954)

Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)

343 U.S. 579 (1952)

Terminiello v. Chicago

337 U.S. 1 (1949)

Everson v. Board of Education of Ewing Township

330 U.S. 1 (1947)

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323 U.S. 214 (1944)

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319 U.S. 624 (1943)

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317 U.S. 111 (1942)

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310 U.S. 88 (1940)

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304 U.S. 64 (1938)

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304 U.S. 144 (1938)

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300 U.S. 379 (1937)

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285 U.S. 22 (1932)

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283 U.S. 359 (1931)

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277 U.S. 438 (1928)

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274 U.S. 357 (1927)

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268 U.S. 652 (1925)

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268 U.S. 510 (1925)

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250 U.S. 616 (1919)

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249 U.S. 47 (1919)

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198 U.S. 45 (1905)

United States v. Wong Kim Ark

169 U.S. 649 (1898)

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163 U.S. 537 (1896)

Chinese Exclusion Case—Chae Chan Ping v. United States

130 U.S. 581 (1889)

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109 U.S. 3 (1883)

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100 U.S. 303 (1880)

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88 U.S. 162 (1875)

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83 U.S. 130 (1873)

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60 U.S. 393 (1857)

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17 U.S. 316 (1819)

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The Stalking Threat of Nuclear Terrorism

Douglas Birch, R. Jeffrey Smith | March 2016

Key Nuclear Security Summit Issue to Watch

The following story was originally published on November 12, 2015 by the Center for Public Integrity, a nonprofit, nonpartisan investigative news organization in Washington, DC. 

The Fuel for a Nuclear Bomb Is in the Hands of an Unknown Black Marketeer From Russia, US Officials Say

The presence of identical fissile materials in three smuggling incidents indicates someone has a larger cache and is hunting for a buyer.

CHISINAU, Moldova—The sample of highly-enriched uranium, of a type that could be used in a nuclear bomb, arrived here on a rainy summer day four years ago, in a blue shopping bag carried by a former policeman.

According to court documents, the bag quickly passed through the hands of three others on its way to a prospective buyer. It was not the first time such material had passed through this city, raising international alarms: It had happened twice before. And mysteriously, in all three cases, spanning more than a decade, the nuclear material appeared to have the same origin—a restricted military installation in Russia.

This news would quickly reach Washington. But that day, the first to pick up the blue bag was the wife of a former Russian military officer, who handed it off to a friend while she went shopping in this former Soviet city’s ragged downtown.

Not long afterward, a 57-year-old lawyer named Teodor Chetrus, from a provincial town near the Ukrainian border, retrieved it and brought it to a meeting with a man named Ruslan Andropov. According to an account by Moldovan police, the two men had, earlier in the day, visited a local bank, where Chetrus confirmed that Andropov had deposited more than $330,000 as an initial payment.

Andropov next examined the contents of the bag: a lead-lined cylinder, shaped like a thermos. It was meant to be the first of several shipments of highly-enriched uranium totaling 10 kilograms (22 lbs), a senior investigator here said. That’s about a fifth of what might be needed to fuel a Hiroshima-sized nuclear explosion—but almost enough to power a more technically-advanced “implosion-style” nuclear bomb.

But then, abruptly, Chetrus’s participation with this group of shadowy characters in the illicit sale of nuclear explosive materials—the stuff of nightmares at the CIA, the Pentagon, and the White House—went awry.

Andropov turned out to be working with Moldovan police, who were monitoring communications between those involved, with advice from the US Embassy in Chisinau. On June 27, 2011, they swooped in. Photos of the arrests show a policeman in a ski mask holding a Kalashnikov while Chetrus knelt on a sidewalk in front of the bank. He would eventually be sentenced to five years in prison.

Chetrus’s arrest ended one of four attempts in the past five years by Moldovan residents to smuggle dangerous nuclear materials into the hands of unscrupulous buyers. But his capture did not ease the concerns of Western intelligence services.

Instead, it stoked them, because the resulting international probe into the case has sparked fresh, and previously unreported, worries that thieves inside of Russia somehow made off years ago with a full bomb’s worth of highly enriched uranium. Western spies fear the thieves have been doggedly looking for a buyer for the past sixteen years, by repeatedly dangling in front of them identical, genuine samples of that highly valuable material.

Five current or former US officials who have tracked nuclear smuggling, and who declined to be named because this assessment is classified, said it is now a consensus view within the intelligence community.

But no one in the West knows exactly who has this nuclear explosive material, and where they may be.

It’s a mystery that so far has stumped America’s best spying efforts, in no small measure because the government of Russian president Vladimir Putin has refused to provide needed information on the case—or even to acknowledge that some of the country’s nuclear explosive materials are missing.

Three Identical Incidents

Western concerns are based on a simple trail of evidence that officials have until now kept secret: Three times since 1999, identically packaged containers of highly-enriched uranium have been seized by authorities outside of Russia—in Ruse, Bulgaria, in May 1999; in Paris in July 2001; and most recently here in Chisinau. In each case those holding the uranium said it was part of a larger cache, available to a buyer for the right price. That claim, while unproven, is considered credible by experts who have studied the three incidents.

Confidential forensic analysis by US and French nuclear scientists—worthy of a “CSI” episode—has shown that these materials came from the same stockpile. Officials say they believe all were produced in the early 1990s at a sprawling Russian nuclear facility known as the Mayak Production Association, located in Ozersk, in the Ural mountains, roughly 900 miles (1,400 km) east of Moscow. The facility, which produced the fuel for Russia’s first nuclear warheads and for its naval nuclear reactors, is still one of the country’s “closed cities,” where access is tightly regulated.

The similarities between these three seizures make them the most worrisome unresolved instances of illicit trafficking in authentic, bomb-grade materials anywhere in the world, according to more than a dozen government officials and independent experts interviewed for this article, many of whom spoke on condition of anonymity due to the sensitivity of the topic.

While seven of those involved in the smuggling have so far been prosecuted in Bulgaria, France and Moldova, officials say they are just low-level members of a shadowy international ring with Moldovan and Russian connections, all working for a person or persons whose identity remains cloaked.

Intelligence professionals—who say they put the issue of nuclear smuggling near the top of all their priorities—explain that this is a hard target to hit. Their principal ambition is to catch the thief and the buyer, but so far they have seen only middlemen.

But evidence collected from the probes of these three incidents indicates that a weapons-grade cache of nuclear material has been “in the wild since the mid-1990s,” a knowledgable US intelligence official said. It’s widely thought to be no longer in Russia, and to possibly have passed through multiple hands, the official added, explaining that the 2011 Moldovan case is what helped solidify this assessment.

The basis for international worry, several officials explained, is the potential for all or part of this nuclear-materials cache to wind up in the hands of a terrorist buyer who could transform it into a viable weapon, using technical information about nuclear bomb designs that has leaked long ago into the public domain.

The FBI has privately discounted Moldovan claims that radioactive materials seized in more recent smuggling incidents here were being sought by the Islamic State terrorist group. Still, American worries about the 2011 Chisinau case were heightened by the presence in the Moldovan capital at the time of the deal of a potential buyer from Sudan, where Al Qaeda tried to obtain some uranium in the early 1990s and remains active, officials here and in Washington said.

With so many nuclear explosives held by governments around the world, US officials have long worried about the possibility of a terrorist-engineered nuclear or radiological blast within the United States. Multiple federal agencies have held almost 1,400 drills in cities around the country over the last decade to train local police and emergency personnel in how to behave after such a nightmare unfolds, according to a spokeswoman for the National Nuclear Security Administration.

Asked at a March 2014 nuclear security summit in the Netherlands whether he thought Russia’s assertive foreign policy was the number one threat to the United States, President Obama replied that “I continue to be much more concerned, when it comes to our security, with the prospect of a nuclear weapon going off in Manhattan.”

According to a 2004 Department of Homeland Security guidebook to disaster response, even a relatively small nuclear detonation—comparable to 10,000 tons of TNT, or about half the force of the blast that levelled Nagasaki—would kill hundreds of thousands of people, contaminate 3,000 square miles (7,800 sq km), and cause billions of dollars in damages, while leaving an urban area a mile (1.6 km) in diameter a smoking wasteland.

The Nuclear Smuggling Capital

Besides making the arrests in 2011, Moldovan police detained three people who they said were trying to smuggle depleted uranium in Aug. 2010, and last year the FBI helped investigate a group that tried to smuggle low-enriched uranium—neither of which can be used in a nuclear bomb. This year, further arrests were made in a case involving cesium, a radioactive, but not explosive, material.

Experts say Moldova’s repeated role in nuclear smuggling is unsurprising, since cross-border crime is much more prevalent in poorly governed or fractured states. Roughly the size of Maryland with about two-thirds the population, it is one of the poorest former Soviet republics. Filled with rolling fields and tiny villages, the country is squeezed between Romania and Ukraine and brushed by the Danube River. The capital of Chisinau, a brash and dusty place, shows signs of fast economic growth that has benefited only a sliver of its citizens. BMWs and Lexus sedans share the streets with hordes of tiny taxis and Soviet-era streetcars, and pensioners line the sidewalks peddling soaps, samovars and women’s underwear.

Since 1992, its territory has been split into two ethnically separate regions, dominated one by Romanian and the other by Russian and Ukrainian speakers. Russian troops have been stationed for decades in the second of these regions, known as Transnistria, a sliver of land on the eastern bank of the Dniester River, over the opposition of the central government.

Like other fragments of the former Soviet empire occupied by Russian troops, Transnistria is a haven for smugglers, particularly of cigarettes, arms, and prostitutes. It has its own flag, displaying a hammer and sickle, but isn’t recognized as a country by any member of the United Nations, including Russia.

The Transnistrian capital, Tiraspol, is where Galina Agheenco—who picked up the blue bag containing the uranium from the former policeman and passed it to a friend—lived with her husband Aleksandr, 58, a mustachioed Russian former military colonel, according to officials here. An English-language slide presentation about the incident prepared by the Moldovan Ministry of Internal Affairs calls Aleksandr the “leader of the criminal group” involved in the nuclear smuggling incident.

His ambition, a Moldovan Supreme Court ruling in May 2014 said, was to sell a total of one kilogram of highly-enriched uranium for roughly $36 million, in a deal plotted on Skype, on mobile phones, and in emails—many of which turned out to be monitored by the government. The actual material offered prior to the police raid was one-hundredth of that amount.

But Col. Gheorghe Cavcaliuc, a soft-spoken, young Moldovan police official who heads the special operations division, said in an interview here that efforts by the police to learn more about Aleksandr’s activities and connections have been stymied. An arrest warrant for him is still unfulfilled, five years later, and officials here say they heard he fled from Transnistria to Russia. Attempts by the Center for Public Integrity to obtain his response to the allegations against him were unsuccessful.

“We sent several requests to the Russian Federation for information about him, but we didn’t get any answers,” Cavcaliuc said.

Washington hasn’t fared any better. The US Embassy here “does not maintain liaison relationships or active, ongoing contacts with Transnistrian law enforcement and/or security service personnel,” a December 2009 State Department cable released by Wikileaks said.

Galina Agheenco, whose Lexus GS330 car had Transnistrian plates, was detained on the day of the incident and served three years in prison. But the former policeman who brought her the uranium, and was charged in the case, returned to Transnistria when he was released by a court pending trial, defying a judge’s order, according to the Moldovan police report. Chetrus, meanwhile, was freed from prison last December and is appealing his sentence.

The two other cases involving identical samples of nuclear explosives—in France and Bulgaria—also had Moldovan connections, according to investigators here.

Nuclear Explosive Materials in a Van and a Trunk

The 2001 Paris case arose from a tip given to the police there that a 36-year-old Frenchman with a criminal record, Serge Salfati, was trying to find a buyer for 30 kilograms (66 pounds) of highly-enriched uranium – more than enough for a skilled bomb-maker to produce a nuclear explosion. He was using genuine samples weighing a total of 5 grams as a lure.

A special police squad checked for radiation in Salfati’s apartment and garage, but found nothing. Their detectors then got a hit from a van he used, and so they arrested him and seized a lead container containing the samples.

The plane carrying the uranium to Paris flew to Charles de Gaulle Airport from Chisinau, said Ionel Balan, Deputy Director of Moldova’s National Agency for Regulation of Nuclear and Radiological Activities, in an interview here.

The Bulgarian case, two years earlier, arose when a man driving over a bridge at a Danube River crossing to Romania aroused the suspicions of a border guard, who searched his vehicle. The guard found a receipt, written in Cyrillic, for the purchase of “uranium 235,” and then, after pulling apart an air compressor in the trunk, found a lead container inside with that label on it. The man, Urskan Hanifi, told police he bought the material in Moldova and was headed back there after failing to find a buyer for it in Turkey, according to media accounts and a US government report.

Cavcaliuc said he is convinced that a single group stands behind each of the three smuggling cases, and that a larger cache of material could be hidden in Transnistria. “In all three cases, there was the same container, the same chemical components [of the uranium] and traffickers from the same country, Moldova,” he said.

An Unmarked Plane Carrying FBI Agents

But no one knew any of this immediately. When the lead canister seized in 2011 was initially brought to the Moldovan government’s rudimentary police laboratory, Ionel Balan, a biochemist, expected it to be a hoax and so he handled it without gloves or a smock. He found the inside wall had been coated with about an inch of paraffin wax, and inside it was a small glass ampoule shaped like a tiny harpoon, containing a blackish powder.

He used a snub-nosed radiation detector to take two readings, and then he consulted a dog-eared copy of a nuclear materials guide published by Los Alamos National Laboratory in the United States and used worldwide as a reference manual: “And immediately, I understood this was not simple or natural uranium, it was enriched uranium.”

His readings also indicated some of it had decayed, “a clear indication that this sample was old and not fresh.”

Word of this result quickly reached Washington and, shortly afterward, an umarked private jet landed at the Chisinau airport, secretly carrying FBI agents. They scooped up the canister and its contents and flew them back to the United States.

The samples were taken to Lawrence Livermore National Laboratory, where US nuclear weapons have been designed since the 1950s and a group known as the Forensic Science Division specializes in analyzing foreign materials, using a classified library of radioactive particles collected by US officials and intelligence sources all over the globe.

According to Moldovan authorities, a preliminary report by the division, entitled “Results for Moldovan HEU Sample,” concluded that the uranium was produced in Russia and eerily similar to the materials seized a decade earlier in France and Bulgaria.

They did not provide details, but US officials said the isotopic signature, along with other evidence, pointed directly at Russia’s Mayak plant as the origin.

Patrick Grant, one of the lead Livermore investigators, declined to discuss the Moldovan case, but said in an interview that the findings in the Paris case “correlate very well” with those of the uranium seized in Bulgaria. In a 2014 textbook for nuclear forensic scientists, Grant and several colleagues wrote that the ampoules seized in Bulgaria resembled those used to preserve samples from specific production runs at Russian nuclear processing plants. Each of these plants, he said, might have dozens of such samples on its shelves.

Matthew Bunn, a nuclear security expert at Harvard who wrote a classified study about Russian fissile material stocks during the Clinton administration, said such samples would be relatively easy to steal. “You could easily imagine a room full of hundreds of samples… and someone sweeping them into a suitcase and walking out,” he said.

A Chaotic Moment at Russian Nuclear Plants

The apparent age of the purloined materials is not reassuring. The Livermore team fixed the time of the Bulgarian sample production as Oct. 30, 1993, plus or minus one month—a time when Russian political turmoil and economic problems had by many accounts seriously weakened security at the country’s nuclear installations.

At some facilities, security guards and scientists alike were not paid, and morale plummeted. Moreover, “they didn’t have seals, badge systems, or a computerized database” that showed how much explosive material they had and where it was, a US official said, speaking on condition of anonymity.

In 1994, a machinist at the Elektrostal Machine-Building Plant, a nuclear fuel production facility 36 miles (57 km) east of Moscow, told police he carried six and a half pounds (3 kg) of weapons-grade uranium out of the front gate, hidden in a pair of protective gloves. He gave the material to a relative, a butcher in St. Petersburg, who stored it in a jar in his refrigerator while he and two friends—a pipelayer and an unemployed man—hunted for buyers at open-air markets.

That same year, an Elektrostal metal­worker named Vladimir Luzgachev smuggled out another 3.7 pounds (1.7 kg) of enriched uranium in a bag of apples. He was not arrested until June 1995, when Russia’s Federal Security Service learned of his efforts to find a buyer.

Both of those episodes occurred several years after the Federal Security Service arrested a group of nuclear workers for involvement in the theft of 41 pounds (18 kg) of nuclear explosive material from an unnamed facility in Chelyabinsk province, where the Mayak Production Association and three other major plants are located.

Viktor Yerastov, then chief of the Nuclear Materials Accounting and Control Department for the Ministry of Atomic Energy, said in the Winter 2000 edition of Russia’s Yaderny Kontrol (Nuclear Control) magazine that if successful, that theft “could have inflicted a significant damage to the state.” A 2002 CIA report to Congress separately quoted him as saying the amount stolen was “quite sufficient material to produce an atomic bomb.”

No Accounting of What Was Stolen Years Ago

Washington’s anxieties about a potential radioactive “dirty bomb” or nuclear blast on US soil have always been centered around the risk that explosive materials—more than a bomb’s mechanical workings—could fall into the wrong hands. “In the nuclear business, it’s all about the materials,” said Anne Harrington, deputy administrator at the National Nuclear Security Administration, in an interview last year. “You can make widgets, pieces and parts, but without the material you don’t have an improvised [nuclear] device.”

Although roughly two dozen countries have enough nuclear explosives to make a bomb, Russia’s materials have long been the chief Western concern. Of the roughly 20 documented seizures of nuclear explosive materials since 1992, all have “come out of the former Soviet Union,” Harrington separately told the Senate Armed Services Committee’s Subcommittee on Strategic Forces in April 2015. “We see a lot of former Russian military, former Russian intelinvolved in nuclear trafficking,” a US intelligence official said in an interview.

Officials say that’s why Washington has spent about $4 billion over the past 25 years to help that country tighten control of the weapons-usable materials inside its vast nuclear complex. Russian nuclear facilities have made progress, they say, particularly in improving training for security personnel, installing new physical barriers and upgrading related sensor technology. New nuclear security regulations came into effect in 2012, and a civilian oversight group was created to ensure their implementation.

But a senior intelligence official from the Bush administration who retains security clearances said that he was still worried about material stolen decades ago that may be “sloshing around” outside the walls of these facilities. “The real concern is that the material got out of these sites before we paid much attention” to securing them, he said in an interview, speaking on condition he not be named so he could discuss classified analyses.

This anxiety has been sporadically acknowledged by intelligence officials in the past decade. “We find it highly unlikely that Russian authorities would have been able to recover all the material reportedly stolen,” a National Intelligence Council report concluded in 2005, according to an excerpt read by then-Sen. Jay Rockefeller of West Virginia at a hearing of the Senate Select Committee on Intelligence in February 2005.

Rockefeller asked then-CIA Director Porter Goss whether enough had vanished from Russia’s stockpile to build a nuclear weapon. “There is sufficient material unaccounted for so that it would be possible for those with know-how to construct a nuclear weapon,” Goss responded. Rockefeller also asked if Goss could assure the American people the missing material was not in terrorist hands. “No, I can’t make that assurance,” Goss said. “I can’t account for some of the material so I can’t make the assurance about its whereabouts.”

In November 2002, a senior Russian nuclear and radiation safety official, Yuri Vishnevskiy, affirmed that small quantities of nuclear materials, including highly-enriched uranium, had indeed disappeared from nuclear facilities. But Russian officials have been increasingly tight-lipped since then.

Former CIA director George Tenet, in his 2007 memoir, said that after hearing Al Qaeda was trying to buy Russian nuclear devices in 2003, an Energy Department intelligence official went to Moscow to seek information about “reports we had received of missing material.” But the Russians refused to provide details, Tenet wrote, and “in the final analysis, it was still a game of spy versus spy.”

To overcome some of this distrust, US officials tried the following year to draw Russia into joint analysis of fissile materials seized in the Bulgarian incident, but had only limited success. Scientists at Livermore shared a half-gram of that highly-enriched uranium with Russia’s Bochvar All-Russia Scientific Research Institute in Moscow, and paid them $50,000 to do an independent analysis.

According to a report by Michael Kristo, a chemist at Livermore, Bochvar scientists “confirmed the analytical results” reached at his laboratory, including the fact that the sample originated at a nuclear fuel reprocessing facility. But Bochvar did not agree with Livermore that this meant it came from the former Soviet Union, and instead claimed “it could have been produced by any nuclear state possessing the appropriate facilites,” Kristo wrote.

“They’re very guarded and sensitive about the possibility that anything is missing,” a former senior Obama administration official said in a recent interview, echoing comments from many others in Washington. “They never told us” whether they investigated the 2011 Moldovan case or what they found.

The 2011 version of an annual CIA report on Russian nuclear security practices—the most recent one completed—reaffirmed that “we judge it highly unlikely that Russian authorities have been able to recover all of the stolen material,” and added that large uncertainties exist about more recent thefts and the current state of Russia’s safeguards.

Under Putin, Russia has steadily cut back its overall nuclear security cooperation with the United States, arguing that it no longer needs Washington’s financial or technical assistance to safeguard its own fissile material stockpile. “It just faded to a tertiary issue under Putin,” Michael McFaul, the US ambassador to Russia from 2012 to 2014, said in an interview. This year, for the first time in its budget proposal to Congress, administrators at the National Nuclear Security Administration shifted all Russia-related nuclear security expenditures to other purposes.

Officials with Rosatom, the state-owned corporation that runs Russia’s nuclear energy and weapons plants, declined to be interviewed for this article. But Kirill Komarov, first deputy director of Rosatom, spoke briefly to a reporter for the Center for Public Integrity at Moscow’s AtomExpo nuclear exposition in June.

Asked whether a cache of stolen Russian nuclear materials might be held by someone with ill motives, Komarov was dismissive, calling it “a question out of spy plots.”

“You know very well that a very operational system of controlling nuclear materials has been established worldwide—none of them are out of control,” Komarov said, adding that these materials are not passed around like a box of matches among smokers. “Their movements are always strictly controlled,” he said.

Vladimir Rybachenkov, a former counselor on nuclear issues at the Russian Embassy in Washington and now an advisor to the Russian Foreign Ministry, similarly dismissed fears that there were caches of Russian-made nuclear explosive materials that smugglers were dipping into to peddle on the black market.

“Many things are being invented, you know, kind of illusions,” Rybachenkov said. “People like journalists like to write about things that they don’t know for sure. So it’s rumors—rumors and nothing more.”

How Experts Traced the Explosive Materials to Russia

A “CSI”-style probe uncovered a distinctive radioactive signature.

A detailed 2013 report on the Bulgarian case from Lawrence Livermore National Laboratory explained how a nine-month study by a team of lab scientists discerned telltale particle shapes and sizes as well as distinctive radioactive decay rates and concentrations of 72 different elements in the sample provided to Washington, eventually leading “investigators to the source of the HEU [highly-enriched uranium].”

The lab analyzed the fiber content of the container’s labels, with results showing they were “most plausibly produced in Eastern Europe,” while the concentration of certain radioactive particles pointed toward production in “the former Soviet Union” and probably a light-water reactor, such as  a facility associated with the production of fuel for “naval propulsion systems,” according to the Livermore report.

Mark Kristo, a chemist at Livermore, said in an interview this conclusion was partly based on the type of lead in the surrounding canister, and the presence of a colorant known as barium chromate—a carcinogen banned in the West—in its wax lining. The Russians, he said, did not want to look at the paper, glass, and lead.

French researchers, separately writing in a 2007 International Atomic Energy Agency report, said the analysis of the Paris sample “gave a good correlation with the…enriched light water reactor fuel reprocessing”—of the type that current and former US officials say was done in the early 1990’s at Mayak. “This sample really looks like the one in the Bulgarian case,” the French researchers added.

Birch reported from Russia and Moldova; Smith reported from Washington, DC, and California. This story was co-published with  VICE News .

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40 facts about elektrostal.

Written by Lanette Mayes

Modified & Updated: 02 Mar 2024

Reviewed by Jessica Corbett

Elektrostal is a vibrant city located in the Moscow Oblast region of Russia. With a rich history, stunning architecture, and a thriving community, Elektrostal is a city that has much to offer. Whether you are a history buff, nature enthusiast, or simply curious about different cultures, Elektrostal is sure to captivate you.

This article will provide you with 40 fascinating facts about Elektrostal, giving you a better understanding of why this city is worth exploring. From its origins as an industrial hub to its modern-day charm, we will delve into the various aspects that make Elektrostal a unique and must-visit destination.

So, join us as we uncover the hidden treasures of Elektrostal and discover what makes this city a true gem in the heart of Russia.

Key Takeaways:

• Elektrostal, known as the “Motor City of Russia,” is a vibrant and growing city with a rich industrial history, offering diverse cultural experiences and a strong commitment to environmental sustainability.
• With its convenient location near Moscow, Elektrostal provides a picturesque landscape, vibrant nightlife, and a range of recreational activities, making it an ideal destination for residents and visitors alike.

Known as the “Motor City of Russia.”

Elektrostal, a city located in the Moscow Oblast region of Russia, earned the nickname “Motor City” due to its significant involvement in the automotive industry.

Home to the Elektrostal Metallurgical Plant.

Elektrostal is renowned for its metallurgical plant, which has been producing high-quality steel and alloys since its establishment in 1916.

Boasts a rich industrial heritage.

Elektrostal has a long history of industrial development, contributing to the growth and progress of the region.

Founded in 1916.

The city of Elektrostal was founded in 1916 as a result of the construction of the Elektrostal Metallurgical Plant.

Located approximately 50 kilometers east of Moscow.

Elektrostal is situated in close proximity to the Russian capital, making it easily accessible for both residents and visitors.

Known for its vibrant cultural scene.

Elektrostal is home to several cultural institutions, including museums, theaters, and art galleries that showcase the city’s rich artistic heritage.

A popular destination for nature lovers.

Surrounded by picturesque landscapes and forests, Elektrostal offers ample opportunities for outdoor activities such as hiking, camping, and birdwatching.

Hosts the annual Elektrostal City Day celebrations.

Every year, Elektrostal organizes festive events and activities to celebrate its founding, bringing together residents and visitors in a spirit of unity and joy.

Has a population of approximately 160,000 people.

Elektrostal is home to a diverse and vibrant community of around 160,000 residents, contributing to its dynamic atmosphere.

Boasts excellent education facilities.

The city is known for its well-established educational institutions, providing quality education to students of all ages.

A center for scientific research and innovation.

Elektrostal serves as an important hub for scientific research, particularly in the fields of metallurgy, materials science, and engineering.

Surrounded by picturesque lakes.

The city is blessed with numerous beautiful lakes, offering scenic views and recreational opportunities for locals and visitors alike.

Well-connected transportation system.

Elektrostal benefits from an efficient transportation network, including highways, railways, and public transportation options, ensuring convenient travel within and beyond the city.

Famous for its traditional Russian cuisine.

Food enthusiasts can indulge in authentic Russian dishes at numerous restaurants and cafes scattered throughout Elektrostal.

Home to notable architectural landmarks.

Elektrostal boasts impressive architecture, including the Church of the Transfiguration of the Lord and the Elektrostal Palace of Culture.

Offers a wide range of recreational facilities.

Residents and visitors can enjoy various recreational activities, such as sports complexes, swimming pools, and fitness centers, enhancing the overall quality of life.

Provides a high standard of healthcare.

Elektrostal is equipped with modern medical facilities, ensuring residents have access to quality healthcare services.

Home to the Elektrostal History Museum.

The Elektrostal History Museum showcases the city’s fascinating past through exhibitions and displays.

A hub for sports enthusiasts.

Elektrostal is passionate about sports, with numerous stadiums, arenas, and sports clubs offering opportunities for athletes and spectators.

Celebrates diverse cultural festivals.

Throughout the year, Elektrostal hosts a variety of cultural festivals, celebrating different ethnicities, traditions, and art forms.

Electric power played a significant role in its early development.

Elektrostal owes its name and initial growth to the establishment of electric power stations and the utilization of electricity in the industrial sector.

Boasts a thriving economy.

The city’s strong industrial base, coupled with its strategic location near Moscow, has contributed to Elektrostal’s prosperous economic status.

Houses the Elektrostal Drama Theater.

The Elektrostal Drama Theater is a cultural centerpiece, attracting theater enthusiasts from far and wide.

Popular destination for winter sports.

Elektrostal’s proximity to ski resorts and winter sport facilities makes it a favorite destination for skiing, snowboarding, and other winter activities.

Promotes environmental sustainability.

Elektrostal prioritizes environmental protection and sustainability, implementing initiatives to reduce pollution and preserve natural resources.

Home to renowned educational institutions.

Elektrostal is known for its prestigious schools and universities, offering a wide range of academic programs to students.

Committed to cultural preservation.

The city values its cultural heritage and takes active steps to preserve and promote traditional customs, crafts, and arts.

Hosts an annual International Film Festival.

The Elektrostal International Film Festival attracts filmmakers and cinema enthusiasts from around the world, showcasing a diverse range of films.

Encourages entrepreneurship and innovation.

Elektrostal supports aspiring entrepreneurs and fosters a culture of innovation, providing opportunities for startups and business development.

Offers a range of housing options.

Elektrostal provides diverse housing options, including apartments, houses, and residential complexes, catering to different lifestyles and budgets.

Home to notable sports teams.

Elektrostal is proud of its sports legacy, with several successful sports teams competing at regional and national levels.

Boasts a vibrant nightlife scene.

Residents and visitors can enjoy a lively nightlife in Elektrostal, with numerous bars, clubs, and entertainment venues.

Promotes cultural exchange and international relations.

Elektrostal actively engages in international partnerships, cultural exchanges, and diplomatic collaborations to foster global connections.

Surrounded by beautiful nature reserves.

Nearby nature reserves, such as the Barybino Forest and Luchinskoye Lake, offer opportunities for nature enthusiasts to explore and appreciate the region’s biodiversity.

Commemorates historical events.

The city pays tribute to significant historical events through memorials, monuments, and exhibitions, ensuring the preservation of collective memory.

Promotes sports and youth development.

Elektrostal invests in sports infrastructure and programs to encourage youth participation, health, and physical fitness.

Hosts annual cultural and artistic festivals.

Throughout the year, Elektrostal celebrates its cultural diversity through festivals dedicated to music, dance, art, and theater.

Provides a picturesque landscape for photography enthusiasts.

The city’s scenic beauty, architectural landmarks, and natural surroundings make it a paradise for photographers.

Connects to Moscow via a direct train line.

The convenient train connection between Elektrostal and Moscow makes commuting between the two cities effortless.

A city with a bright future.

Elektrostal continues to grow and develop, aiming to become a model city in terms of infrastructure, sustainability, and quality of life for its residents.

In conclusion, Elektrostal is a fascinating city with a rich history and a vibrant present. From its origins as a center of steel production to its modern-day status as a hub for education and industry, Elektrostal has plenty to offer both residents and visitors. With its beautiful parks, cultural attractions, and proximity to Moscow, there is no shortage of things to see and do in this dynamic city. Whether you’re interested in exploring its historical landmarks, enjoying outdoor activities, or immersing yourself in the local culture, Elektrostal has something for everyone. So, next time you find yourself in the Moscow region, don’t miss the opportunity to discover the hidden gems of Elektrostal.

Q: What is the population of Elektrostal?

A: As of the latest data, the population of Elektrostal is approximately XXXX.

Q: How far is Elektrostal from Moscow?

A: Elektrostal is located approximately XX kilometers away from Moscow.

Q: Are there any famous landmarks in Elektrostal?

A: Yes, Elektrostal is home to several notable landmarks, including XXXX and XXXX.

Q: What industries are prominent in Elektrostal?

A: Elektrostal is known for its steel production industry and is also a center for engineering and manufacturing.

Q: Are there any universities or educational institutions in Elektrostal?

A: Yes, Elektrostal is home to XXXX University and several other educational institutions.

Q: What are some popular outdoor activities in Elektrostal?

A: Elektrostal offers several outdoor activities, such as hiking, cycling, and picnicking in its beautiful parks.

Q: Is Elektrostal well-connected in terms of transportation?

A: Yes, Elektrostal has good transportation links, including trains and buses, making it easily accessible from nearby cities.

Q: Are there any annual events or festivals in Elektrostal?

A: Yes, Elektrostal hosts various events and festivals throughout the year, including XXXX and XXXX.

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