1. 1 st 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.

2. Preferred Position SCOTUS-established guideline for future cases 1 st am freedoms are fundamental human rights & have prerogative If there is a dilemma between citizens’ rights, 1 st am rts superior

3. 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

4. Freedom of Religion History of Establishment Clause Jefferson: “Wall of separation between church and state” Madison: “perfect separation between the ecclesiastical and civil matters”

5. Freedom of Religion Free Exercise Clause …or prohibiting the free exercise thereof… Prohibits government restrictions on religious activity

6. Establishment cases Virtually all cases have been in last 75 years Several topics: Public funding Religion in public schools Public displays

7. 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

8. 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

9. Public funding School vouchers 1973 – states can’t give parents $ to attend private schools 2002 – states can give vouchers if it’s religiously neutral

10. Public schools 1962 – Engel v. Vitale Public schools can’t have mandatory recitation prayer

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. Freedom of Speech Exceptions Time / Place / Manner  TPM restrictions on speech are OK if they don’t limit content of speech  Possible examples:  Time—not in middle of night  Place—not on private property  Manner—not with bullhorn

21. 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

22. 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

23. Freedom of Speech Exceptions School speech 1988 – schools can censor student newspapers 2006 – schools must allow students to criticize authority figures

24. Freedom of Speech Symbolic speech 1989 – Texas v. Johnson Burned flag on gov property, arrested Symbolic expression is protected

25. 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."

26. Freedom of the Press Censorship  NY Times v. USA (1971)  Prior restraint—gov ability to censor before publication (right of 1 st refusal)  Only legal if imminent national security risk  “Grave and irreparable harm”

27. Freedom of the Press Reporter privilege / Shield laws  Allow protection of reporters’ confidential sources in criminal cases  Most states have shield laws, but national gov doesn’t have one on the books

28. Freedom of the Press Defamation (libel)  NY Times v. Sullivan (1964)  Media protected against libel suits by public officials unless actual malice  Media knowledge that information is false or reckless disregard of its veracity

29. Freedom of the Press Defamation (libel)  Curtis Publishing v. Butts (1967)  Libel suits by public figures a little easier to win  Media must have shown reckless lack of professional standards

30. Freedom of the Press Satire  Hustler v. Falwell (1987)  Public figure parodies that wouldn’t reasonably be believable are protected

31. 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

32. Freedom of Assembly Time/Place/Manner restrictions  Examples:  Permit (public property)  Permission (private property)  Peaceful

33. Freedom of Association Expressive association  Groups expressing beliefs/identity by choosing who can be members  Groups can’t exclude for reasons unrelated to their central expression

34. Freedom of Association Expressive association  Boy Scouts v. Dale (2000)  Groups can exclude for reasons central to their expression

35. 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