First Amendment Freedoms

• Freedom of Religion– Two Clauses involved

• Establishment Clause – your belief – “wall of separation between church and state”– Not a complete separation (money and pledge)

• Free Exercise Clause – your actions based upon the belief (this may be limited)

Cases Studies:

• Everson: Child benefit theory created

• Lemon: excessive entanglement test

• Engel: no school prayer• Wallace: no mandatory

prayer during moment of silence

• Marsh: legislative sessions may begin with a prayer

• Lee: no religious speaker at graduation

• Santa Fe: students may not lead a public prayer at school events

• Zelman – school vouchers permitted

• Gobitis: salute the flag• Barnette: flag salute not

mandatory• Wisconsin: Amish

children

Freedom of Religion v. Schools• Excessive Entanglement

Test – Lemon (loans of equipment v. buying equipment)

• Child Benefit Theory – Everson

• Mandatory – vaccinations, etc. (health)

• Flag Salute – not mandatory – stand

• Evolution Taught – must be permitted (Edwards case and Epperson case)

• Release Time – can we use public schools for religious education?– McCollum case states

that we are not permitted to have religious education classes during school hours on school grounds

– Zorach case states that students may leave school grounds for religious purposes

Freedom of Religion v. Schools• Prayers and the Bible

– Engel – no school prayer using the PA system

– Abington School District (no Bible reading)

– Murray (no reciting of the Lord’s Prayer)

– Wallace – moment of silence

– Lee – no prayer at graduation

– Santa Fe – no student led prayer using PA system

Freedom of Speech

Protected Speech

• Pure Speech: speech only, no actions• Speech Plus: actions plus words• Symbolic Speech: an item takes the place

of words

Not Protected Speech

• Obscenity: Roth v. US (I know it when I see it) plus Miller v. California (local governments determine – 3 part test)

• Libel and/or slander (written or spoken)• Fighting Words (Chaplinsky v. New

Hampshire)• Abstract Doctrine or incitement to an

illegal act – be specific in the law and be careful in your actions

Seditious Speech• Alien and Sedition Acts

– 1798– 25 arrests, but all pardoned by President

Jefferson• Sedition Act of 1917

– Crime to encourage disloyalty, interfere with the draft, hinder the sale of bonds –

– Schenck case (more later)• Smith Act of 1940

– No advocating overthrow, no distribution of materials (Dennis, Yates and Brandenburg)

Symbolic Speech• Expression of conduct is often known as “symbolic

speech”• Case Law:

– United States v. O’Brien – you may not burn the draft card (government property)

– Kelley v. Johnson – requirements for dress and hair depending on profession

– Tinker v. Des Moines School District – as long as they do not disrupt the “educational flow” students may wear their black armbands

– Texas v. Johnson – flag burning is permitted – it is your personal property

– United States v. Eichman- flag protection act is ruled unconstitutional (Congress passed an act to overturn TEXAS case)

Cases to Know (and love)• Schenck v. United States (clear and present

danger rule)• Gitlow v. New York (dangerous tendency –

incorporation)• Whitney v. California (guilt by association)• Dennis v. United States (no advocating

overthrow of the government)• Yates v. United States (you may urge

someone to believe, but not to act)• Brandenburg v. Ohio (imminent action)

Tests for Free Speech

• Prior Restraint– Bethel v. Fraser (in

schools)

• No Vagueness – easy rule – put details• Least drastic means• Content neutral• Dangerous Tendency• Preferred Position Doctrine

Freedom of the Press

• Sunshine Laws (public allowed to meetings)

• Shield Laws – states may protect, but not mandated by federal

• Prior Restraint – NY Times v. US (permitted if for national security)and Near v. Minnesota (no prior restraint)plus Hazelwood (prior restraint/censorship permitted in the schools)

Freedom of Assembly

• Right to gather in groups of more than two to show disapproval with the government

• Usually associated with parades, pickets and peaceful demonstrations

• Cox v. New Hampshire – the government may require permits for the TIME, PLACE and MANNER but not the CONTENT