123 Go To Section: 4 Establishment Clause or Free Exercise Clause? 1.The words “in God we trust”...

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Establishment Clause or Free Exercise Establishment Clause or Free Exercise Clause?Clause?1. The words “in God we trust” on money.

2. Public schools beginning each day with a prayer over the intercom.

3. Banning Native Americans from smoking peyote (marijuana) as a religious practice.

4. Forbidding human sacrifice in satanic churches.

5. Letting Congress begin their sessions with a prayer.

6. Teaching creationism in biology classes.

7. Banning same sex marriages because most churches in the U.S. are opposed to them.

8. Making Christian holidays national holidays.

9. Banning polygamy in the Mormon church.

10. Banning prayers from graduation ceremonies in public schools.


Sleazy GDESleazy GDE

Famous rap artist Sleazy GDE has recently released a very controversial album entitled Freedom. There are several songs on the album that have caused concern. In The Prez, sleazy hurls insults and obscenities at Barack Obama and encourages Americans to write in Ludacris in the 2012 presidential election. Sleazy claims Ludacris “is one f—ked up G that will rape your girl and blast you in a heartbeat.” In Whore, Sleazy degrades women, encourages men to leave their families, and “f—k the b---h up good ‘cuz she deserves it.” In Rebel, the most controversial song on the album, Sleazy encourages all Americans to stop following all laws in the coutry and “blast any patriotic, red, white and blue mutha f—ker that stands in your way.” The state of Illinois bans the sale of the album. Sleazy files suit claiming his freedom of speech rights have been violated.


““Congress shall make no law…abridging the Congress shall make no law…abridging the freedom of speech, or of the press…”freedom of speech, or of the press…”

Chapter 19, Section 3Chapter 19, Section 322 4411

Freedom of Speech and Freedom of Press

guarantees are meant to:

• Protect each person’s right of free expression, whether spoken, written, or communicated in any other way.

• Protect a citizen’s right to be informed.

• But these rights are not absolute.


Libel and Slander are illegalLibel and Slander are illegal

• Slander - the false and malicious use spoken words.

• Libel - the false and malicious use of written words.


Seditious Speech is not protectedSeditious Speech is not protected

Sedition - attempting to overthrow the government by force, or to disrupt its lawful activities by violent acts.

Seditious speech - speech that urges such conduct.

Wartime Sedition - Taking any action that is a hindrance to the war effort.

Peacetime Sedition – Encouraging others to break the law or overthrow the government.

Schenk v. U.S. (1919) “Clear and present danger.”



Which definition applies to our current Which definition applies to our current situation?situation?


Seditious SpeechSeditious Speech


Congress has enacted three major laws to prevent sedition and seditious speech:

• The Alien and Sedition Acts—made scandalous or false criticism of the government illegal. Expired before Thomas Jefferson took office in 1801.

• The Sedition Act of 1917—made it a crime to encourage disloyalty or spread anti-government ideas during a time of crisis. Upheld by the Supreme Court in instances of “clear and present danger.”

• The Smith Act of 1940—forbade advocating violent overthrow of the government, and belonging knowingly to any group that does. The Supreme Court still upholds the constitutionality of the law, but over time has modified it so that it is difficult to enforce.

Sedition is the crime of attempting to overthrow the government by force, or to disrupt its lawful activities by violent acts. Seditious

speech is speech that urges such conduct.


Which of these is obscene?Which of these is obscene?


The Obscenity TestThe Obscenity Test

Miller v. California - 1973

Something is obscene if:

• The average person finds that it appeals to “prurient (sexual) interests” judging from local standards.

• It depicts offensive sexual conduct that is specifically outlawed as obscene.

• It lacks serious scientific, social, cultural or artistic value.



Symbolic Speech is sometimes limitedSymbolic Speech is sometimes limited

Symbolic speech is expression by conduct.

Examples: picketing, marching in a protest, sit-ins.


The Supreme Court has not protected all forms of symbolic speech.

United States v. O’Brien (1968) burning a draft card is not protected.

Texas v. Johnson (1989) burning the American flag is protected.


Censoring the PressCensoring the Press

Prior Restraint – Government action that stops a story before it is published.

• Near v. Minnesota (1931) Protected the publication of a “malicious, scandalous, and defamatory” periodical.

• New York Times v. U.S. (1971) Protected the publication of the Pentagon Papers because the government could not prove they endangered national security.

However

• Hazelwood School District v. Kuhlmeier (1988) School administrators can censor student newspapers.



Other media casesOther media cases


The Relationship between the Freedom of Speech and Press Amendments and the Media:

Confidentiality: Branzburg v. Hayes (1972) Reporters can be forced to testify in a trial (divulge names of sources). Exemptions can be granted by Congress or state legislatures.

Motion Pictures: Burstyn v. Wilson (1952) Films are forms of

expression protected by the 1st Amendment. The industries ratings standards allow viewer discretion.

Both Radio and Television Media: Red Lion Broadcasting v. FCC (1969) Broadcast media has very limited 1st Amendment protections because they are broadcast on “public airwaves.”


Commercial SpeechCommercial Speech

Commercial Speech is speech for business purposes, usually advertising.

• Advertising is protected by the 1st, but not without exceptions.

• Exceptions include: barring false and misleading advertisement, advertising illegal goods or services, and the promotion of tobacco products on the radio or television.



Master K.K.K.Master K.K.K.

On his newly released album Aryan Nation, white supremacist rap artist Master KKK includes a track entitled The only good one is a dead one. The lyrics of this song implicitly encourage physical violence against African Americans. In another track, Why didn’t Hitler invade Africa, Master KKK advocates the genocide of the African race. Concerned citizens and state officials in Illinois decide the album is too violent, extremely offensive and ban the sale of it within state boundaries. Master KKK sues claiming his 1st amendment rights have been violated. I you are the judge in the case, how will you side?

123 Go To Section: 4 Establishment Clause or Free Exercise Clause? 1.The words “in God we trust”...

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