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