The First Amendment “embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.” --SCOTUS, 1940 What do you think…

The First Amendment What clauses are within the FA? What have been some of the controversies surrounding it? What are important cases?

Establishment Clause (freedom of religion) “The Congress shall make no law respecting an establishment of religion…”  Prevents government from establishing an official state religion  Have been years of debate over scope of clause  Separation of church and state largest controversy, esp. schools (Engel v. Vitale (1962))  Lemon v. Kurtzman (1971) sets clearest boundaries for religious establishment issues in “Lemon Test”  Secular, no religious effect, no entanglement.  Wall lowered since the case except with school prayer  Aid used to be books only; has been broadened to school access, funding  Also limits other actions, e.g. prison ministries.

Free Exercise Clause …or prohibiting the free exercise thereof”  Government cannot interfere with religious practice  Is not absolute; necessity can outweigh freedom.  Still, laws must be neutral toward religion

Free Speech and Press (freedom of expression) “Congress shall make no law…abridging the freedom of speech or of the press”  NOT interpreted as absolute bans against governmental regulation  First Amendment meant to guard against prior restraint, or censorship of a publication  Alien and Sedition Acts of 1798; Lincoln’s suspension of free press; sedition acts 1880s- 1910s by the states during WWI went against this principle  New limitations during/after World War I  clear and present danger test—law should not punish speech unless there is a clear danger of producing harmful act (Schenck v US 1919)  Modified in 1969 to be direct incitement test—advocating illegal action protected except imminent lawless action is intended and likely to occur

Protected Speech  Court will rarely tolerate prior restraint  NYT v. US (1971)— “Pentagon Papers”  Court also protects symbolic speech—symbols, signs, or other expression  Tinker v. DesMoines (1969)  Hate speech also receives growing protection  KKK rallies, cross burning (by state)  Freedom of Assembly and Petition directly related to Speech and Press

Unprotected Speech and Press Libel—written false statement that purposely intends to hurt someone (“actual malice”) –NYT v. Sullivan (1964) Slander—spoken false statement that intends to injure another Fighting Words—words that inflict injury or immediate breach of peace –Obscenity—“utterly without redeeming social value” hard to prove Roth v. US (1957); Miller v CA (1973) establishes test –Profanity –Threats