Freedom of Religion – Establishment Clause(Key Concept: “Neutrality”)

“To keep the wall (that separates church from state) from tumbling down, government actions must pass….”

1. The Lemon Test (Lemon v. Kurtzman, 1971) = “3 Prongs”

• Govt actions must have “secular purpose”

• Govt actions cannot “advance nor inhibit” religion

• Govt actions cannot be “excessively entangled” w/ religion

2. Neutrality and Excessive Entanglement (Agostini v. Felton, 1997)

• Lowers the wall that separates church from state by eliminating the secular purpose prong from “The Lemon Test”

3. Related Topics/Cases

• Religious Displays (Lynch v. Donnelly, 1994)

• School Prayer (Engel v. Vitale, 1962; Abington School District v. Schemp, 1963,)

• Moment of Silence (Wallace v. Jaffree, 1985)

Freedom of Religion – Free Exercise Clause(Key Concepts: Beliefs = “YES”, Anti-Social Behavior = “NO)

“To ensure that the government doe not interfere with the free exercise of religion, government actions must pass….”

1. Strict Scrutiny (Sherbert v. Verner, 1963)

• Laws or government actions that “burden” religious expression must satisfy a “compelling government interest”

• Laws or government actions that “burden” religious expression must be the least restrictive means of achieving that interest

2. Strict Scrutiny Rejected (Employment Division v. Smith, 1990)

• Laws or government actions that indirectly restrict free exercise = OK

• Only laws or government actions aimed at specific religious groups are unconstitutional

• Religious Freedom Restoration Act (RFRA) in 1993 attempts to nullify Employment Division v. Smith ruling

• City of Boerne v. Flores (1997) negates RFRA and reaffirms Employment Division v. Smith ruling

Freedom of Expression – Freedom of Speech(Key Concepts: Advocacy of Ideas = Protected, Incitement = Not Protected)

“The government can regulate/punish advocacy of ideas ONLY if it can prove an intent to promote lawless action & demonstrate a high probability that such action will occur….”

1. Clear and Present Danger Test• Schenck v. U.S. (1919) distinguished speech as advocacy of

ideas (protected) from speech as incitement (not protected)

• Gitlow v. New York (1925) says 1st Amend speech and press protections applied to states t/ due process clause of 14th Amend

• Brandenburg v. Ohio (1969) extends freedom of speech to new limits = “govt action to restrict speech only permissible if danger is real and lawless action imminent as result of speech”

2. Symbolic Expression Protected (Tinker v. Des Moines ISD, 1969)• Texas v. Johnson (1989) protects flag-burning

• Flag Protection Act (1989) attempts to nullify Texas v. Johnson

• U.S. v. Eichmann (1990) negates Flag Protection Act

Freedom of Expression – Freedom of Speech(Key Concepts: Advocacy of Ideas = Protected, Incitement = Not Protected)

“The government can regulate/punish advocacy of ideas ONLY if it can prove an intent to promote lawless action & demonstrate a high probability that such action will occur….”

3. Fighting Words NOT Protected • Chaplinsky v. New Hampshire (1942) says speech “intended to

inflict injury or incite immediate breech of the peace” = incitement = NOT protected

• Terminiello v. Chicago loosens definition of “fighting words” & protects “provocative speech” – dissent warns that if “practical wisdom” does not prevail, Bill of Rights will become “suicide pact”

• Cohen v. California (1971) affirms Terminiello ruling

4. Threatening Expression IS Protected• Communications Decency Act (1996) outlaws circulating

patently offensive sexual material to sites accessible to minors

• Reno v. ACLU (1997) upholds lower court ruling that Communications Decency Act is unconstitutional = similar to print media, indecent material on Internet is protected speech

Freedom of Expression – Freedom of Speech(Key Concepts: Advocacy of Ideas = Protected, Incitement = Not Protected)

“The government can regulate/punish advocacy of ideas ONLY if it can prove an intent to promote lawless action & demonstrate a high probability that such action will occur….”

5. Obscenity NOT Protected • Justice Potter Stewart could not define “obscenity” but said “I

know it when I see it.”

• The Miller Test (Miller v. California, 1973) Work appeals to “prurient interests” (incites lustful thoughts) Work portrays sexual conduct in patently offensive way Work lacks serious literary, artistic, political, or scientific

value Local community standards determine “prurient interests” and

“offensive sexual conduct” prongs

6. Adult Pornography IS Protected

• U.S. District Judge Sarah Evans Barker “to deny free speech in order to engineer social change…erodes the freedom of all” (American Book Sellers Association v. Hudnut)

Freedom of Expression – Freedom of the Press“The ability to collect and report information w/o government interference is….”

1. PROTECTED…

• When reporting about public figures and the reporting is without malice (knowingly false and/or with reckless disregard for the truth) - (New York Times v. Sullivan, 1964)

• When outrageous criticism inflicts “emotional distress” on public figures (Hustler Magazine v. Falwell, 1988)

• From prior restraint or censorship Near v. Minnesota (1931) New York Times v. United States (1971) –government did not

meet the heavy burden of proving that publication of “Pentagon Papers” would do immediate, inevitable, and irreparable harm to U.S. security interests

2. NOT PROTECTED…• When the government requires testimony in a criminal

proceeding or when investigating criminal conduct (Zurcher v. Stanford Daily, 1978)

• When censorship by school officials serves a “valid educational purpose (Hazelwood School District v. Kuhlmeier, 1988)