Freedom of PressThe Common Law

principle of Seditious Libel

designed to protect the government from criticism

people would lose faith in their government if there was too much criticism

The Truth is NOT a defense; in fact the greater the truth, the greater the libel

Freedom of PressThe John Peter

Zenger Trial (1735)originally it was

judges who made the ruling on seditious libel

this trial argued that the decision should be in the hands of the jury

the jury decision would make the truth a defense

Freedom of PressNear v. Minnesota

(1931) – No Prior Restraint

New York Times v. Sullivan (1964) – Defamation cases must prove actual malice

NY Times v. US (1971) - Pentagon PapersNebraska Press

Association v. Stuart (1976) – pre-trial gag rule is prior restraint

Freedom of PressHazelwood School

District v. Kuhlmeier (1988)

The Principal can exercise editorial control over the school newspaper or yearbook.

Decisions must be "reasonably related to legitimate pedagogical concerns."

Freedom of ReligionEstablishment of

Religion – prohibits the government from treating religions differently

any disparate treatment must survive Strict Scrutiny

Freedom of Religion . The Lemon Test – Lemon v.

Kurtzman (1971) The new modified test –

Lemon test isn’t used any more

Whether the government is affirmatively endorsing religion;

Whether the government is affording special treatment to one religion that it is not affording to other religions

Whether the government is coercing persons to engage in religious activities.

All three prongs must be satisfied for a challenged government action to be valid

Freedom of ReligionGovernment Aid Who gets the aid? –

Aid to students in religious schools or aid directly to religious schools?

What kind of aid? – textbooks or TV’s

a Math teacher in a religious school is serving a secular purpose

Freedom of ReligionGovernment Activities

– Secular purpose?A.Schools Schools may not

require prayer or bible reading

- no designated time for silent or voluntary prayer

- even nonsectarian prayers advance religion

Freedom of ReligionGovernment Activities

– Secular purpose?A. SchoolsOptional religious

instruction- Schools may not

offer a class on religious instruction during the school day, but can allow you to go offsite to receive it

Freedom of ReligionGovernment Activities

– Secular purpose?A. Schools Posting of the 10

Commandments – Schools may not

post the commandments on the wall

- Students may research religions as a part of course curriculum

Freedom of ReligionGovernment

Activities – Secular purpose?

A. Schools Reasonable

Accommodation of Religion – Bible Study Club

Freedom of Religion Government Activities –

Secular purpose?B. Other Public Venues –

Governments may recognize and publicly observe religious events - Christmas holiday or Sunday work laws

Display of religious symbols on Government Property

- private speech in a public forum can never violate the establishment clause

(Capital Square Review and Advisory Bd. v. Pinette – 1995)

Freedom of ReligionGovernment Activities

– Secular purpose?B. Other Public

Venues – Observance of religious holidays

– OK to observe Christmas

– and put up a tree, not OK the put up nativity scene

Prayer in Legislatures – OK – historical habit and no coercion

Freedom of ReligionImportant

Establishment Cases

Engle v. Vitale (1962)

Lemon v. Kurtzman (1971)

Freedom of Religion

Free Exercise of Religion

–the government cannot exclude, burden, or prohibit individuals or their conduct because of the religious nature of that conduct

Freedom of Religion

Free Exercise of Religion

Limits on Government regulation

must survive Strict Scrutiny – the government action must be narrowly tailored to serve a compelling state interest

Freedom of Religion

Free Exercise of Religion

What is religion or religious belief?

Freedom of Religion

Free Exercise of Religion

What is religion or religious belief?

The relevant inquiry is whether the individual sincerely believes

The belief should occupy a place similar to a belief held by a formal religion

Freedom of Religion

Free Exercise of ReligionLaws of General

Applicability – OK even if they prohibit religious conduct

example: Peyote use, racial discrimination and tax breaks

A city ordinance banning animal sacrifice cannot exempt the Kosher slaughter of animals

Freedom of Religion

Free Exercise of Religion

Employment Division v. Smith (1990)

The Church of the Lukumi Babaylu Aye v. Hialeah (1993)