University of Houston Law Center



Freedom of ReligionThe Establishment Clause“Congress shall make no law respecting an establishment of religion”This means that the government can’t tell you what religion to practice, and that they can’t favor one religion over another.Lemon Test to determine if a law violates the Establishment ClauseThe statute must not result in an "excessive government entanglement" with religious affairs. (also known as the Entanglement Prong)The statute must not advance or inhibit religious practice (also known as the Effect Prong)The statute must have a secular (non-religious) legislative purpose. (also known as the Purpose Prong)With your group, decide whether the law in the following case violated the First Amendment:Santa Fe Independent Schools v. DoeSome public high school students in Texas wanted to offer a Christian prayer before every school football game. The school district allowed the students to elect a student chaplain (the student that would give the prayer) who would read a Christian prayer over the P.A. system at home football games.High school football games are held on public school property. The school supervised the use of the P.A. system.It was the students who wanted a prayer before every football game and the students who offered the prayer.Freedom of ReligionThe Free Exercise Clause“Congress shall make no law…prohibiting the free exercise [of religion]”This means that the government can’t tell you how to practice your religion.If a law is “neutral” and “generally applicable,” then it (usually) doesn’t violate the Free Exercise ClauseThe Government must have a “compelling interest to refuse to accommodate religiously motivated conduct.”With your group, decide whether the law in the following case violated the First Amendment:Wisconsin v. YoderAmish families pulled their students out of public school after the completion of 8th grade because their religion tells them that higher education is unnecessary and may even threaten their salvation.Wisconsin has a compulsory attendance law which requires students to attend school until they reach the age of 16. Wisconsin convicted the parents for violating the law. The law does not have an exception for students whose religion prevents them from attending high school. Wisconsin has an interest in making sure all children are educated enough to become productive members of society.Freedom of SpeechPolitical Speech (criticizing the government, insisting on reform, etc) is highly protectedExpressive in natureServes an important function of the republicTime, Manner, Place Restrictions: The government can place these restrictions on your speech, but the restriction must:Be Content neutralBe Narrowly tailoredServe a significant governmental interestLeave open ample alternative channels for communicationWith your group, decide whether the restrictions in the following situations would violate the First Amendment:A city prohibiting citizens to post signs with political opinions written on them in their windows, but still permits signs like “for sale” or signs with business names written on them to be posted in windows.A city only allows billboards to be used for advertising.A city requires that any group wishing to have a concert or rally in the park must use city provided sound systems and technicians to control the volume of concerts in the park.Because the National Parks Service bans everyone from camping in the parks, they denied a permit request from protestors who set up tent cities and wanted to sleep in the park to demonstrate the plight of homelessness.A city prohibits posting campaign signs in residential yards any earlier than 60 days before an election.Freedom of the Press“Congress shall make no law… abridging the freedom… of the press.”“Press” means “every sort of publication which affords a vehicle of information and opinion.”Like Freedom of Speech, there are some categories of publications that are not protected. Libel is a good example of an unprotected publication.With your group, decide whether the following situations would violate the First Amendment:Someone complains that your Facebook profile picture is inappropriate. Facebook removes the photo and bans you from the site.The government bans all books that criticize the excessive use of force by police officers.The government shuts down a blogger’s website after she posts criticisms about President Obama.You use your cell phone to record a police officer arresting someone. You are arrested and charged with obstruction of justiceBecause I don’t want Governor Inslee to be re-elected, I write newspaper article—which I know to be false—claiming that he believes he is a time-traveler, sent from the future to protect democracy. He sues me.Same facts as number 5, but Governor Inslee actually does think he is a time-traveler, sent from the future to protect democracy.Right to Peaceably Assemble“Congress shall make no law… abridging… the right of the people peaceably to assemble.”The right of a group of people to come together to express, promote and defend their ideas.Time, Manner, Place Restrictions: The government can place these restrictions on your speech, but the restriction must:Be Content neutralBe Narrowly tailoredServe a significant governmental interestLeave open ample alternative channels for communicationA Government cannot punish speech for its content unless the speechIs intended to produce imminent lawless action, ANDIs likely to incite or produce such actionWith your group, decide whether the restriction in this case violated the First Amendment.National Socialist Party of America v. Village of Skokie:Skokie, Illinois’s population is over 50% Jewish. Thousands of Skokie’s citizens were survivors of Nazi concentration camps.The National Socialist Party of America (Nazi Party) wanted to have a parade in in the Skokie. They would be wearing their Nazi Party uniforms, be displaying swastikas, and be distributing pamphlets that would promote hatred against persons of Jewish faith or ancestry. They applied for a permit with the village. A local trial court filed a court order prohibiting the group from engaging in those activities (This type of court order is called an injunction). Right to Petition the Government“Congress shall make no law… abridging… the right of the people… to petition the Government for a redress of grievances.”With your group, decide whether the law in the following case violated the First Amendment:NAACP v. ButtonA Virginia law prohibits “improper solicitation of any legal or professional business.” This means that lawyers are not allowed to “improperly” seek out clients.The National Association for the Advancement of Colored People (NAACP), sought out parents of children who had been discriminated against in public schools. The NAACP gave the parents paperwork and legal advice, and offered to sue the state on the parents’ behalf.The State of Virginia held the NAACP to be in violation of the law mentioned above.First Amendment Activity AnswersFreedom of Religion: The Establishment ClauseSante Fe Independent Schools v. Doe (2000)Holding: A policy permitting student-led, student-initiated prayer at high school football games violates the establishment clause; because at public high school, at a government-sponsored event using school property. Looks like an endorsement from the governmentFreedom of Religion: Free Exercise ClauseWisconsin v. Yoder (1972)Holding: Wisconsin’s law violated the Amish parents’ freedom of religion because the parents’ interests in the free exercise of their religion under the First Amendment outweighed the State’s interests in compelling two extra years of schooling beyond 8th grade.Freedom of SpeechLadue, MO v. Gilleo (violates 1st Amendment)Metromedia, Inc v. City of San Diego (violates 1st amendment; goes too far)Ward v. Rock Against Racism, 1989 (No violation; reasonably related to legitimate governmental interest in controlling excessive noise which is content neutral)Clark v. Community for Creative Non-Violence, 1984 (No violation; reasonable time manner place restriction to protect the park; content neutral; park beauty)Collier v. City of Tacoma, WA Supreme Court 1993 (Yes, violation of state and federal free speech; though aesthetics and traffic safety is an important government interest, in this case, it did not sufficiently justify restricting plaintiff’s political speech in a public forum; alternatives were not practically available – radio ads vs yard signs)Freedom of the PressNo; not a government actorYes; censorship of written speech that isn’t unprotectedYes; censorship for criticizing the government which is protected written speechYes, maybe; unless you are truly interfering with the police officer’s activities (for example you are standing to close to a hot scene). The ACLUNo; sounds like libel which is not protected pressYes; libel is only successful if the victim can prove the written statement is a lie. Here the Governor really thinks he is a time traveler.Right to Peaceably AssembleNational Socialist Party of America v. Village of Skokie (1977)Holding: Supreme Court heard case about the trial court’s injunction saying there had to be strict review standards or otherwise couldn’t impose itSent back to Illinois Supreme Court IL Supreme Court found that this was not a content neutral restriction and couldn’t be justified by imminent lawless action/”fighting words” exceptions because though offensive, was not attempting to promote physical harm or riots. (1978)Right to Petition to GovernmentNAACP v. Button (1963)Holding: Violation of right to petition in a round-about way; can’t bar lawyers from soliciting people to serve as litigants in civil rights cases. The Courts and litigation might be the only way a minority can successfully/meaningfully petition the government for help. ................
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