Amendment I

1. Amendment I 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.

2. Establishment Clause Information • The establishment clause of the First Amendment reads “Congress shall make no law respecting an establishment of religion.”

3. History of Court in regards to Establishment Test • The United States Supreme Court heard few church-state cases between 1791 and 1946. Why was this? Until the Civil War and the passage of the 14th Amendment, the First Amendment did not apply to states. • In Cantwell v. Connecticut(1940), the Supreme Court held that the free exercise of religion is one of the “liberties” protected by the due-process clause.”

4. Origin of Establishment Clause Test • In Everson v. Board of Education (1947) Justice Hugo L. Black (on the Court 1937-1971) detailed the history and importance of the Establishment Clause. He states that prior to the Fourteenth Amendment, “some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings in the public schools in accordance with the tenets of a particular sect.”

5. Black set’s up Test • Neither a state nor the federal government can set up a church. • Neither can pass laws which aid one religion, aid all religions nor prefer one religion over another. • Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. • No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. • No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. • Neither a state nor the federal government can openly or secretly participate in the affairs of any religious organizations or groups and vice versa.

6. Tests Used by the Supreme Court in Establishment Clause Cases • Establishment Clause Test– First test/ later replaced • Lemon Test– Has come under lots of controversy in more recent years with a call to return to Establishment Clause Test • Endorsement Test • Coercion Test

7. The Lemon Test Case • The Lemon test, based on the 1971 U.S. Supreme Court ruling in Lemon v. Kurtzman,is the standard of judicial review in cases involving the establishment clause of the First Amendment. The Lemon test involves three criteria for judging whether laws or governmental actions are allowable under the establishment clause. A negative answer to any of the three questions means the act is unconstitutional.

8. The Lemon Test ?’s • Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose? • Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral? • Does the law or action avoid excessive entanglement of government with religion? • If the answer to all three is yes, the law passes the Lemon test.

9. The Endorsement Test • The endorsement test asks whether the challenged law or government action has either the purpose or effect of endorsing religion or disapproving of religion in the eyes of the community members. As O’Connor argued, “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. … What is crucial is that the government practices not have the effect of communicating a message of government endorsement or disapproval of religion.”

10. The Coercion Test • Justice Anthony Kennedy proposed a “coercion” standard in Lee v. Weisman(1992). In this case, the test focused on the psychological coercive effect of clergy-led prayer at graduation ceremonies. • The Court found, “The school district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction.” • The Court stated in its decision, “… at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”

11. Dissent to Coercive Test • Justice Antonin Scalia, a devout Catholic and former altar boy, wrote in the dissenting opinion that “from our Nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, ‘appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions’ and avowed ‘a firm reliance on the protection of divine Providence.’ In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President

12. Majority Opinion on Coercion • In the majority opinion, Justice Kennedy, also a devout Catholic and former altar boy, stated, “The atmosphere at a state legislature’s opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend.”

13. 5 Scenarios for Establishment Clause

14. Scenario 1 • During the Christmas season in 1993, the Ku Klux Klan asked for permission to erect a large cross in an area known as Capital Square in Columbus, Ohio. Capital Square is the site of the state capitol, as well as an open area in which a menorah and Christmas tree were being displayed. The state agency regulating public access to this open area denied the Klan’s request. The agency said that putting a religious symbol so close to the state capitol would be an endorsement of religion by the state government. The Klan sued, arguing that its free speech rights were being denied.

15. Decision • In Capitol Square Review and Advisory Board v. Pinette (1994), the Supreme Court ruled in favor of the Ku Klux Klan. It concluded that the square was a “public forum” in which the government cannot discriminate on the basis of the content of speech without a compelling reason for doing so. While violation of the Establishment Clause could provide such a reason, the Court found that allowing the Klan’s cross in the square did not violate the establishment clause. Because the square was known as a public forum, the opinions and viewpoints expressed there did not represent the views of the government, but of the individuals who expressed their views. Thus, the Klan’s unattended cross would not suggest any endorsement or promotion of religion by the state of Ohio.

16. Scenario 2 • For 30 years, city of Los Angeles officials had authorized the lighting of a huge cross on the City Hall, at first to honor Christmas holidays and then to honor both the Roman Catholic/Protestant and Eastern Orthodox Easter Sundays. The lighting was accomplished by turning certain lights in the building on or off at night so that the effect was a huge cross that could be seen for many miles away.

17. Decision • The California State Supreme Court ruled in Fox v. City of Los Angeles that the display of a lit cross at City Hall was, in fact, unconstitutional and violated the state’s religious “preference clause.” The court found that the city of Los Angeles had identified itself with the central symbol of one religion. The duty of the court was to protect those of other faiths or no faith from coercion toward conformity that might result by this formal endorsement of one religion.

18. Scenario 3 • Two holiday displays had been held for years in Pittsburgh on public property. The first, a depiction of the Christian nativity scene, was placed on the Grand Staircase of the Allegheny County Courthouse. At the crest of the Nativity scene or crèche, an angel held a banner proclaiming, “Gloria in Excelsis Deo,” meaning “Glory to God in the Highest.” The crèche was donated by the Holy Name Society, a Roman Catholic group and bore a sign indicating this. The second holiday display was an 18-foot Chanukah menorah which was placed outside the City County Building next to the city’s 45-foot decorated Christmas tree. At the foot of the tree was a sign bearing the mayor’s name and containing text declaring the city’s “salute to liberty.” The menorah was owned by Chabad, a Jewish group, but it was stored, erected and removed each year by the city.

19. Decision • In Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989) the Court found the city’s holiday display of a Christian nativity scene to be unconstitutional. The words on the banner “endorse a patently Christian message. … Nothing in the nativity scene setting detracts from that message.” However, in permitting the display of the menorah outside the City County building by a Christmas tree and a sign saluting liberty, the Court found that the city and county sought merely to “celebrate the season,” and to acknowledge the historical background and the religious, as well as secular, nature of the Chanukah and Christmas holidays. As the Court stated, “This interest falls well within the tradition of governmental accommodation and acknowledgment of religion that has marked our history from the beginning.”

20. Scenario 4 • Students at a university paid student fees to support a wide variety of student organizations. The university limited the groups that could receive support from these fees. For example, a group publishing a cultural or political magazine could receive funds, but a group that published a religious magazine could not. A group that published a magazine advertised as providing “A Christian Perspective at Our University” was denied student fees to help pay publishing costs. The university claimed that providing funding to help pay for the magazine would violate the establishment clause. The student group claimed its free speech rights were being denied by the university’s actions.

21. Decision • The Supreme Court found in Rosenberger et. al. v. Rector and Visitors of the University of Virginia et. al. (1995)] that the university was required to provide funds for the publication of the magazine “Wide Awake: A Christian perspective at the University of Virginia,” because the school had created an open forum in establishing the Student Activities Fund. As a recognized student organization, there is no implication that the university supports the positions of the group, and the monies were paid to suppliers (printers), not to a religious organization. The Court rejected the establishment clause argument to support the student group’s free speech rights.

22. Scenario 5 • A state legislature passed a bill that required all public school students to engage in silent prayer at the start of the school day.

23. Decision • Silent prayer sponsored or endorsed by the public school is unconstitutional. The Supreme Court has held in many cases that mandatory or state-sponsored prayer in school is a violation of the Establishment Clause. For example, in Santa Fe Independent School District v. Doe, Jane, et al., the Court decided that the state school district’s policy permitting student-led, student-initiated prayer at football games violated the Establishment Class of the First Amendment. The constitutionality of the moment of silence is uncertain. It is clear that teachers may instruct students to maintain any quiet activity during this time. Teachers should not say anything about bowing heads or in any way encourage prayer or other religious exercise during the period of silence. • This does not mean that students cannot pray silently to themselves while at school. Generally, individual students are free to pray, read their Bibles, express religious viewpoints, and even invite others to join their particular religious group as long as they are not disruptive of the school or disrespectful of the rights of other students.

24. How Free is Your Freedom of Speech?

25. Limits of Freedom of Speech • Over the years, the courts have decided that a few other public interests — for example, national security, justice or personal safety — override freedom of speech. There are no simple rules for determining when speech should be limited, but there are some general tests that help.

26. Specific Limits • Clear and Present Danger • Fighting Words • Libel and Slander • Obscenity • Conflict with Other Legitimate Social or Governmental Interests • Time, Place, and Manner

27. Clear and Present Danger • Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action. • Justice Holmes, speaking for the unanimous Supreme Court, stated, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

28. Fighting Words • Was something said face-to-face that would incite immediate violence? • In Chaplinsky v. New Hampshire, the Supreme Court stated that the “English language has a number of words and expressions which by general consent [are] ‘fighting words’ when said without a disarming smile. … Such words, as ordinary men know, are likely to cause a fight.” The court determined that the New Hampshire statute in question “did no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker — including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” Jurisdictions may write statutes to punish verbal acts if the statutes are “carefully drawn so as not unduly to impair liberty of expression.”

29. Libel and Slander • Was the statement false, or put in a context that makes true statements misleading? You do not have a constitutional right to tell lies that damage or defame the reputation of a person or organization.

30. Obscenity • In June 1973 in Miller v. California, the Supreme Court held in a 5-to-4 decision that obscene materials do not enjoy First Amendment protection. • In Miller v. California (1973), the court refined the definition of “obscenity” established in Roth v. United States (1957). It also rejected the “utterly without redeeming social value” test of Memoirs v. Massachusetts. • In the three-part Miller test, three questions must receive affirmative responses for material to be considered “obscene”: • Would the average person, applying the contemporary community standards, viewing the work as a whole, find the work appeals to the prurient interest? • Does the work depict or describe sexual conduct in a patently offensive way? • Does the work taken as a whole lack serious literary, artistic, political, or scientific value? • One must distinguish “obscene” material, speech not protected by the First Amendment, from “indecent” material, speech protected for adults but not for children. The Supreme Court also ruled that “higher standards” may be established to protect minors from exposure to indecent material over the airwaves. In FCC v. Pacifica Foundationthe court “recognized an interest in protecting minors from exposure to vulgar and offensive spoken language.”

31. Conflict with Other Legitimate Social or Governmental Interests • Does the speech conflict with other compelling interests? For example, in times of war, there may be reasons to restrict First Amendment rights because of conflicts with national security. • To ensure a fair trial without disclosure of prejudicial information before or during a trial, a judge may place a “gag” order on participants in the trial, including attorneys. Placing prior restraint upon the media usually is unconstitutional. In Nebraska Press Association v. Stuart (1976), the Supreme Court established three criteria that must be met before a judge can issue a gag order and restrain the media during a trial.

32. Time, Place, and Manner • These regulations of expression are content-neutral. A question to ask: Did the expression occur at a time or place, or did the speaker use a method of communicating, that interferes with a legitimate government interest? For example, distribution of information should not impede the flow of traffic or create excessive noise levels at certain times and in certain places.