FIRST AMENDMENT UNIT 12

1. FIRST AMENDMENTUNIT 12

2. I. Religious Pluralism • Occurs when society has many religions being practiced within it. • Conflicts are normal when government tries to protect peoples’ right to worship freely while not forcing religious beliefs on others.

3. II. FREEDOM OF RELIGION A. Establishment clause Government cannot prohibit any religion nor favor one religion over another. It is also not allowed to establish an official state religion.

4. B.Free Exercise Clause • Freedom OF religion, not freedom FROM religion. • The practice of religious beliefs shall not be infringed on by the government. e.g. Compelling students to salute the flag against their beliefs

5. Compelling Interest Test • Restrictions on religious practices must face strictest scrutiny by the courts. That is, they must have an extremely vital reason to abridge a person’s religious liberties. • It is difficult for the government to meet this compelling interest threshold as it faces a severe burden of proof in making such restrictions. Westboro Baptist Church members protesting at a fallen soldier’s funeral

6. But, don’t overdo it… • If the gov’t actually provides the necessary burden of proof, then it must only use the least drastic means to achieve its stated purpose.

7. One man’s culture can be another man’s crime when it involves religious practices. The government has established prohibitions to “free exercise” based on community health, safety, or morals reasons. Prohibited practices: - human sacrifice - cannibalism - snake-handling - immoral sexual practices - illegal drug use - polygamy Prohibitions to Free Exercise

8. C. Oregon v. Smith (1990)

9. D. Reynolds v. United States (1879)

10. E. Neutrality of Government • Government must maintain neutralityin any disputes between religions and their beliefs. • Courts will refuse to hear such disputes unless they involve other rights within the argument and then only decide on the non-religious rights at issue.

11. F. Interpretation of 1st Amendment • Wall of separation- No official relationship can exist between the government and any religion or religious practice. No religion can be preferred over another. • Accommodation-Some things can be allowed for government to have a “relationship” with religion (e.g. “In God We Trust” on coins).

12. Accomodation of Religion Lynch v. Donnelly (1984) Religious symbols/displays on public property are banned unless secular symbols are also displayed. No nativity scene without Santa Claus, elves, Christmas tree or Frosty! Holidays Christmas and Thanksgiving are national holidays, so gov’t workers get paid time off. Public education School plays and concerts must balance religious themes with secular ones. OK NOT OK

13. Tax Accomodation • Government cannot tax a religion’s organization, programs or property. • Money collected by the religion must be used to support its faith and its works. • Using the pulpit for political purposes can remove the tax exemption. - Examples: telling people who to vote for; calling for people not to pay their taxes, etc.

14. III. Landmark Religious Cases Lemon v. Kurtzman(1971) - Public aid to religious schools is not allowed under separation of church and state unless three criteria are met. If the aid fails one criteria, it fails the entire test. - LEMON TEST 1. Aid must have a secular purpose. 2. Aid cannot advance or inhibit a religion. 3. Aid cannot involve excessive government entanglement with a religion or its beliefs.

15. Aid to Religious Schools • DIRECT AID is prohibited. Funding of religious programs, paying teacher salaries, repairing facilities is not allowed. • INDIRECT AID is allowed. It must be secular in nature without gov’t conditions or interference: - Vouchers or tuition tax credits - Non-religious textbooks can be loaned - Riding public school buses OK - Pay admin costs of standardized tests

16. Engel v. Vitale (1962) • No compulsory prayers or non-denominational prayers in public schools. 1. Schools are state institutions and students are impressionable and may come under peer pressure to conform. 2. Non-denominational prayers cannot be forced on students as they violate the “wall of separation” under the Establishment clause.

17. Abington School District v. Schempp (1963) • No silent prayers in school allowed. Such actions may cause students to feel compelled to participate against their religious beliefs. • No Bible recitation even if the state thinks that it serves a moral purpose. Bibles used in public schools only as historical or literary source. • No minutes of silence for the sole purpose of silent prayer. VA’s minute of silence is OK as it is not considered a prayer period.

18. D. Wisconsin v. Yoder (1972) • Wisconsin required compulsory education for all students through age 16 • Amish families objected as they said education beyond 8th grade directly conflicted with their fundamental beliefs. • USSC ruled that Amish’s religious freedom outweighed state’s interests. Two more years of high school would not justify significant benefits to Amish students as state claimed.

19. IV. Freedom of Speech A. The rules: 1. Belief: Anything you want. 2. Verbal (oral) speech: Speak but don’t act illegally. 3. Symbolic (silent) speech: Symbols can be used to represent verbal speech and are equally protected.

20. Freedom of Speech (cont’d) • Obscenity – is NEVER protected speech. Individual community standards decide what is or isn’t obscene speech. • Sedition – Treasonous speech in general. - Speech against the gov’t policies and actions is allowed as a normal part of political discourse. The 1st Amendment allows for the petition of government.

21. Freedom of Speech Cont’d) • Libel / slander – Malicious, untruthful speech designed to publicly humiliate someone. Not protected; if it’s a lie, don’t say it! • Fighting words (aka: direct incitement) – Speech that incites people to commit illegal acts. Punishable if there is imminent danger that it will cause dangerous acts to happen.

22. A. Schenck v. United States (1919) • Established the “clear and present danger” test. • Schenck violated the Espionage Act of 1917 by mailing leaflets to draft age men during WW1 urging them to resist conscription. • USSC ruled that such action posed an immediate danger to America’s war effort and security. • Such leaflets in peacetime are OK as it does not pose an immediate threat. • Chief Justice Holmes wrote that the Constitution does not protect a person who “falsely shouts ‘Fire!’ in a theater and thus causes panic.”

23. B. Gitlow v. United States (1925) • Established the “dangerous tendency” doctrine. • Gitlow served as the Executive Secretary of the American Socialist Party and violated New York’s sedition laws by passing out leaflets that urged workers to conduct a violent overthrow of the U.S. government. • USSC ruled that states may censor speech as a means to protect the “primary and essential right to self-preservation.” • States may censor speech if a “substantive evil” may come about as a result of such speech.

24. Political Speech • In any case where the government or its policies and actions is the target of one’s speech, the centrality of political speech applies. This means… - Political speech cannot be suppressed unless it incites immediate violence. Unpopular ideas cannot be punished by government.

25. C. Chaplinsky v. New Hampshire (1942) • Court ruled that “fighting words” are not protected under the 1st Amendment. • Chaplinsky called a town councilman a “g--damn racketeer” and “damned fascist” in a public place. He was arrested for disturbing the peace and using obscenity. • USSC ruled that his use of fighting words did not convey any political ideas so his speech was not protected. • Chaplinsky’s words were ruled to have been chosen to evoke a violent reaction, inflict emotional injury or incite an immediate breach of peace from those he verbally assaulted.

26. VI. Symbolic Speech Symbols, signs, clothing, & other methods of silent expression are considered to be speech and thus protected.

27. A. Tinker v. Des Moines School District • Upheld the right of students to wear black armbands in protest of the Vietnam War. • Symbolic speech that does not disrupt the school curriculum or mission can’t be censored. • “Students and teachers do not shed their constitutional right to free speech at the schoolhouse gates.”- Justice Abe Fortas

28. B. Texas v. Johnson (1984) • Texas’ flag burning statute ruled unconstitutional. Johnson had “fired up” the flag as a political protest at the 1984 Republican Convention. • His Texas conviction was overturned. Flag burning is protected symbolic speech according to the Court. • Congress passed Federal Flag Protection Act (FFPA) a few days after the Court’s ruling to make it a federal crime to desecrate the U.S. flag. - FFPA ruled unconstitutional in United States v. Eichman (1990)

29. VII. Freedom of the Press A. Sunshine laws -All government meetings must be held in public and accessible to citizens and the press. B. Freedom of Information Act (FOIA) - Federal law requires the gov’t to release non-classified information to the press or public upon request.

30. Freedom of Press (cont’d) C. Shield laws -Laws that protect a journalist’s sources of information from being divulged in court. - Recognized by more than half the states but NOT recognized by the federal courts.

31. D. Libel and Slander • Neither is protected under the 1st Amendment • New York Times v. Sullivan (1964) - Determined status of a person as a public or private citizen. - Public persons (e.g. celebrities, news media personalities, politicians and gov’t figures, authors, etc. are in the public eye and have less ability to claim libel for things said about them. • For speech to be libelous, it must show “malice aforethought”

32. E. Prior Restraint • Definition:Government censorship of the press by telling it in advance what it cannot publish. • The state must have a compelling interest to restrict a free press in any way and be able to meet the Court’s strictest scrutiny test. • The Court has ruled the public’s right to know outweighs most gov’t concerns, even some cases involving national security.

33. NEAR V. MINNESOTA (1931) • Publishers of a Minnesota newspaper called some local politicians gangsters. Under MN law, the gov’t could get an injunction against the paper to prevent further publication of the story. • The Court struck down the MN law and injunction because it could not meet the high threshold of showing irreparable harm to the state. • Prior restraint has usually been treated by the Court as a violation of free press.

34. NY TIMES v. U.S. (1971)“Pentagon Papers “ Case • Daniel Ellsberg, a Pentagon defense analyst, stole some classified defense documents and gave them to the NY Times in protest of the Vietnam War. • Federal government sued the Times to prevent publication citing grave national security concerns.

35. NY TIMES v. U.S. (cont’d) • The Court ruled that the government did not meet the “heavy burden of justification” for prior restraint and noted that the government should do a better job protecting classified information. • Court also ruled that the public’s right to know how the government was running the war was more important than the security issues in this case.

36. VIII. FREE EXPRESSION VERSUS ORDER • Hazelwood v. Kuhlmeier (1988) - High school journalism students wanted to publish articles on teen pregnancy and parental divorce. - School administrators censored the paper citing the following:

37. Hazelwood v. Kuhlmeier • Students sued the school alleging violation their right to free press. • The Court ruled against the students saying schools could censor student newspapers if the “censorship has a valid educational purpose.” (Did the article enhance the educational mission of the school?)

38. Hazelwood v. Kuhlmeier USSC ruled that: * Student and parent names could be determined from the articles and the parents were not given a chance to respond. * Articles were inappropriate for the school’s younger students. * Articles did not meet the rules of fairness and privacy taught in the journalism class.

39. Virginia v. Black (2003) • Virginia law made it a felony to burn a cross for purposes of intimidation. • Black sued saying it was a violation of his free expression. • The Court ruled that burning crosses on lawns was a type of “hate speech” and therefore was not protected.

40. Virginia v. Black (cont’d) • Hate speech infringes on the rights of those who are the targets of the speech. Therefore… • They are made to feel unable to freely associate or participate fully in society due to intimidation, fear, or threat of violence to themselves.

41. C.Speech Codes • May be instituted by gov’t authorities and other organizations (e.g. universities, work places, courts, military, etc.) to prohibit a hostile atmosphere via intolerant speech (e.g. gay bashing, racial bigotry, religious slurs, misogynistic) • You should know your college’s speech code before you attend because ignorance of it will not be an acceptable excuse!

42. IX. OBSCENITY A. What constitutes obscenity? - Who says what is obscene or within the bounds of acceptable speech? Answer: Local gov’ts - When does such speech cross from merely vulgar to being obscene? - Obscenity, written or spoken, is NEVER protected speech!

43. B. Miller v. California (1973) • Issue: Does the 1st Amendment allow local governments to use a state law to prosecute publishers of material deemed obscene and sent unsolicited through the mail to homes and still not violate a person’s right of free expression? Answer: Yes, if the local government meets certain criteria for determining obscenity.

44. Miller v. California (cont’d) • This case established the 3 part Miller Test for determining obscenity based on whether the “average man applying contemporary, community standards would find that the work: 1. Panders to an obsessive sexual interest. 2. Has patently offensive sexual content. 3. Lacks serious social or artistic value. • If the material fails any of these tests, it may be deemed as obscene.

45. X. Freedom of Assembly & Association A. People may associate with those they wish and exclude those they don’t want to be with. B. The government may place restrictions on some forms of assembly and association, but must have a compelling interest to do so if challenged.

46. 1. Parolees, minors, pedophiles, those with communicable diseases, etc. 2. Gov’t can deny use of public property to people if events are deemed unsafe. Parades, rallies, fireworks displays, etc. can require permits. 3. Blocking access to public buildings or private property is not an allowable action. 4. Labor strikes must be held off company property and on designated public property only. 5. Any assembly that threatens other peoples’ rights (fighting words, noise, safety issues) can be curtailed .

47. B. Free Association • Private groups may legally discriminate under the 1st Amendment by choosing who they want or don’t want to associate with. Example: Boy Scouts of America v. Dale BSA can refuse to accept homosexuals as members and leaders.

48. Association (cont’d) • A private golf club can refuse to admit women. • High school students can have proms off campus and invite only those they wish. • Religious groups can refuse people as members. • Who CANNOT discriminate as to association? e.g. Business organizations, professional sports teams, homeowners associations, public schools, public accommodations, etc.

49. FIRST AMENDMENT RIGHTSEND OF UNIT 12