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Freedom of Religion

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Patrick Elliott

on 17 February 2014

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Transcript of Freedom of Religion

Civil Liberties vs Civil Rights
Civil Liberties = Civil Liberties = Rights that you are born with ( natural rights, unalienable rights) that the government cannot take away or infringe. Constitutional protections from government power.

The Free Exercise Clause
The Establishment Clause
Freedom Of Religion
Freedom of Speech
Freedom of the Press
Libel and Slander
Civil Liberties
The Establishment Clause

Lee v Wiseman
In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari.
Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment?

Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government.

Lemon v Kurtzman

This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions."
Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"?

Rosenburger v UVA
Ronald W. Rosenberger, a University of Virginia student, asked the University for $5,800 from a student activities fund to subsidize the publishing costs of Wide Awake: A Christian Perspective at the University of Virginia. The University refused to provide funding for the publication solely because it "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality," as prohibited by University guidelines.
Did the University of Virginia violate the First Amendment rights of its Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines?

Yes. The Court, in a 5-to-4 opinion, held that the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. Furthermore, because it promoted past publications regardless of their religious content, the Court found the University's publication policy to be neutral toward religion and, therefore, not in violation of the establishment clause. The Court concluded by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. The exclusion of several views is as offensive to free speech as the exclusion of only one. The University must provide a financial subsidy to a student religious publication on the same basis as other student publications.

Civil Rights = Civil Rights = rights centered around equality that the government is required to protect. Protections by the government, what the government must secure on behalf of its citizens.

Employment Division v Smith
Facts of the Case: 
Alfred Smith and Galen Black worked at a private drug rehabilitation clinic. The clinic fired them because they used a hallucinogenic drug called peyote for religious purposes while worshipping at their Native American Church. The Oregon Employment Division denied them unemployment compensation because it deemed they were fired for work-related "misconduct." The Oregon Court of Appeals ruled that this violated their religious free exercise rights provided by the First Amendment. The Oregon Supreme Court reversed.
Can a state deny unemployment benefits to a worker fired for using prohibited drugs for religious purposes?

Free Exercise of Religion

" nor prohibit the free exercise thereof"

In a 5-4 decision, the SC ruled that otherwise valid, neutral laws of general applicability that incidentally impinge on a particular religious practice do not violate the 1st Amendment’s free exercise clause, period, no compelling interest be shown.

Barron V Baltimore

John Marshall rules that the state of Maryland did not violate the right to protection of property clause of the 5th Amendment because it did not apply to protection from state governments, only the federal government.

Selective Incorporation =
Doctrine used by the Supreme Court to make those provisions of the Bill of Rights that are fundamental rights binding on the states

Gitlow v New York 1925

" A single revolutionary spark may kindle a fire"

State statutes against utterances or speech must be arbitrary and unreasonable. States cannot interfere with fundamental rights and liberties contained in the first amendment. The SC opened the door to Selective Incorporation by establishing the 14th Amendments jurisdiction over the states.
Fourteenth Amendment
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Due Process Clause

The Espionage Act of 1917
Made it a crime to obstruct military recruiting
The Sedition Act of 1918
Banned “disloyal, profane, scurrilous or abusive language” about the Constitution or government of the United States, as well as speech that interfered with the war effort.
After the war, Congress repealed the Sedition Act.

“Acting to guard the general interest in the youth’s well-being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.”

Read more: http://www.fee.org/the_freeman/detail/saving-sick-children-from-state-science#ixzz2sTdQljMk
Brandenburg v. Ohio (1969)—speech cannot be banned unless it leads to “imminent lawless action.”
Klan Leader is arrested under Ohio law for advocating violence as a means of political reform.
SC overturned his conviction stating that the actions he supported were not “immanent.”

Freedom of Speech
Tinker v Des Moines Independent School District
Facts of the Case: 
John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day.
Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections?

The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits. The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.

Texas v Johnson
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.“

Subsequently, in August of 1990, several states introduced legislation reducing the fine of assaulting a flag burner to $5.

 Branzburg v Hayes
 Facts of the Case:
 After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries.
 Question:
 Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment?

 Branzburg v Hayes
 Facts of the Case:
 After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries.
 Question:
 Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment?

No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.

Near v Minnesota
Facts of the Case: 
any person "engaged in the business" of regularly publishiJay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that ng or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.
Does the Minnesota "gag law" violate the free press provision of the First Amendment?

The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

NY Times Co v United States
Facts of the Case: 
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.
Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Prior Restraint
Facts of the Case: 
A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed.
Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?

Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.

The Clear and Present Danger Test

Schneck V The United States

General Secretary of the Socialist Party in Philadelphia, PA Charles Schneck mailed draftees during WWI arguing that the war was immoral. He was convicted under the Espionage Act of 1917. In 1919, the SC upheld his conviction stating that ,

" The most stringent protections of free speech would not protect a man from shouting fire in a crowded theater and creating a panic..... the question in every case is whether the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools.

Miller v California
After conducting a mass mailing advertising the sale of adult material Miller was convicted of violating a California state statute prohibiting the distribution of obscene materials.

Is this protected under the First Amendments free -speech protections?
This case resulted in the Miller Test:
a- whether the average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interests.
b- Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law.
c - whether the work taken as a whole lacks serious literary , artistic, political or scientific value.
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