1st Amendment

Congress shall make no law respecting…1. an establishment of religion, or 2. prohibiting the free exercise thereof; or

3. abridging the freedom of speech, or 4. of the press; or 5. the right of the people peaceably to

assemble, and 6. to petition the Government for a redress of

grievances.

Preferred Position

• SCOTUS-established guideline for future cases

• 1st am freedoms are fundamental human rights & have prerogative• If there is a dilemma between

citizens’ rights, 1st am rts superior

Freedom of Religion

• Establishment Clause• Congress shall make no law respecting

an establishment of religion…

• Prohibits establishing official religion

• Prohibits governmental preference of one religion over any other

Freedom of Religion

• History of Establishment Clause• Jefferson: “Wall of separation

between church and state”

• Madison: “perfect separation between the ecclesiastical and civil matters”

Freedom of Religion

• Free Exercise Clause• …or prohibiting the free exercise thereof…

• Prohibits government restrictions on religious activity

Establishment cases

• Virtually all cases have been in last 75 years

• Several topics:• Public funding

• Religion in public schools

• Public displays

Public funding

• 1899 – Feds can give $ support to Catholic hospital• Legit secular purpose

• 1947 – State govs can fund busing for private school kids• Close decision – because of “entangling

relationship”• But public safety – legit secular purpose

Public funding

• 1971 – Lemon v. Kurtzman• States can’t fund teacher salaries or

educational programs at religious schools

• Lemon Test• Tax $ must have legit secular purpose• Can’t advance or inhibit any religion• Can’t create excessive entanglement

Public funding

• School vouchers• 1973 – states can’t give parents $ to

attend private schools

• 2002 – states can give vouchers if it’s religiously neutral

Public schools

• 1962 – Engel v. Vitale• Public schools can’t have mandatory

recitation prayer

Later public school cases

• 1963 – No mandatory bible readings

• 1980 – Can’t have mandatory 10 commandments in classrooms

• 1985 – Can’t have official silent prayer

• 1992 – Can’t have intercom prayer at other school events

Other public school cases

• 1952 – Off-campus religious classes are allowed if there is no public funding

• Equal Access Act (1984)• Public HS must give equal facility access

to clubs meeting outside school hours

Public religious displays

• Religious displays on gov property are allowed if part of larger secular display

• 1984/1989 – “Plastic reindeer” rule• Religious displays not ok if overtly

promoting a religion, ok if part of larger secular display

• 2005 – 10 Commandment plaque ok if pt of larger secular “lawgiving” display

Free Exercise Clause

• 1878 – Reynolds v. US• Mormon wanted to polygamize in violation

of federal law• 100% freedom of belief, not of action• Free Exercise not an acceptable defense

against legitimate criminal laws

• 1990 – Laws banning drug use are OK if they don’t target religious groups

Free Exercise Clause

• Several cases involving Jehovah’s Witnesses & Amish• Can’t restrict handing out pamphlets• Can’t force kids to pledge allegiance

against religious beliefs• Amish kids can quit school at a young age

Freedom of Speech

• “Congress shall make no law…abridging the freedom of speech”

• “Speech” includes many forms of communication other than pure speech

• Includes symbolic speech as well as silence

Freedom of Speech Exceptions

• Clear and present danger• 1919 – Schenck v. US

• If speech creates a dangerous situation it can be restricted

• “Shouting fire in a crowded theatre”

• But gov must be careful – can’t ban speech if it’s just unpopular

Freedom of Speech Exceptions

• Fighting words/hate speech• Few restrictions unless they create

immediate dangerous situation• Not illegal if they advocate violence

• Commercial speech• Some restrictions are allowed

Freedom of Speech Exceptions

• Obscenity – Miller v. CA (1973)• Legally obscene if:

• Avg person, using contemporary community standards, find it appeals to prurient interest

• Depicts/describes sex or excretory functions

• SLAPS test – not seriously literary, artistic, political, or scientific

Freedom of Speech Exceptions

• Time / Place / MannerTPM restrictions on speech are OK

if they don’t limit content of speech

Possible examples:Time—not in middle of nightPlace—not on private propertyManner—not with bullhorn

Freedom of Speech Exceptions

• Defamatory Speech• Slander – spoken / Libel – written• False statement of fact (not opinion)• Knowledge that statement is a lie

• Or if speaker/writer should know

• Reputation damage = actual damage• Not just embarrassed or mad

Freedom of Speech Exceptions

• School speech• Students have freedom of speech• But not same rights as out of school

• Need order in educational setting

• 1969 – students can silent protest• 1986 – schools can punish indecent

speech by students

Freedom of Speech Exceptions

• School speech• 1988 – schools can censor student

newspapers• 2006 – schools must allow students

to criticize authority figures

Freedom of Speech

• Symbolic speech• 1989 – Texas v. Johnson

• Burned flag on gov property, arrested

• Symbolic expression is protected

Freedom of the Press

• “Congress shall make no law…abridging the freedom of…the press”

• Press originally referred only to printed materials, now broader definition

• "every sort of publication which affords a vehicle of information and opinion."

Freedom of the Press

• CensorshipNY Times v. USA (1971)Prior restraint—gov ability to censor

before publication (right of 1st refusal)Only legal if imminent national security risk“Grave and irreparable harm”

Freedom of the Press

• Reporter privilege / Shield lawsAllow protection of reporters’

confidential sources in criminal casesMost states have shield laws, but national

gov doesn’t have one on the books

Freedom of the Press

• Defamation (libel)NY Times v. Sullivan (1964)Media protected against libel suits by

public officials unless actual maliceMedia knowledge that information is false or

reckless disregard of its veracity

Freedom of the Press

• Defamation (libel)Curtis Publishing v. Butts (1967)Libel suits by public figures a little

easier to winMedia must have shown reckless lack of

professional standards

Freedom of the Press

• SatireHustler v. Falwell (1987)Public figure parodies that wouldn’t

reasonably be believable are protected

Freedom of Assembly

• “Congress shall make no law…abridging the freedom…of the people peaceably to assemble”

• Freedom to assemble in groups

• Freedom to join an association

Freedom of Assembly

• Time/Place/Manner restrictionsExamples:

Permit (public property)Permission (private property)Peaceful

Freedom of Association

• Expressive associationGroups expressing beliefs/identity by

choosing who can be membersGroups can’t exclude for reasons

unrelated to their central expression

Freedom of Association

• Expressive associationBoy Scouts v. Dale (2000)Groups can exclude for reasons

central to their expression

Freedom of Petition

• “Congress shall make no law…abridging the freedom…of the people…to petition the Government for a redress of grievances”

• Right to lobby government officials

• Right to sue government