First Amendment

Question 1

Establishment Clause (Lemon v. Kurtzman Test)

Answer 1

1. Law must have a secular purpose (only needs to be one purpose)
2. Law must have primary secular effect that neither advances nor inhibits religion
3. Law must not create excessive government entanglement with religion
   (Evaluating Entanglement)
   -Character and purpose of religious institution
   -Nature of Aid
   -Resulting relationship between inst & govt

Question 2

Establishment Clause (Endorsement Test)

Answer 2

Does a particular challenged governmental practice send a message pf non-adherence to people that don’t believe in that practice that the government is endorsing that practice and they are not full members of the political community. (Reasonable observer)

If yes, it fails the endorsement test.

Question 3

Establishment Clause (Coercion)

Answer 3

Prohibits gov’t from establishing a church and from coercing participation in a religious practice, and prohibits gov’t from coercing

Question 4

Punishable Speech - Likely to Incite Imminent Lawless Action

Answer 4

State has burden of proof to show:

1) Subjective intent to cause harm/incite
2) Words used were likely to produce imminent, lawless action
3) Words used objectively encouraged and urged incitement

Question 5

Punishable Speech - Offensive Speech

Answer 5

Fighting Words Exception (Chablinsky) - not protected if likely to result in a fight

Question 6

Cross Burning

Answer 6

Can be outlawed if intent to intimidate, but the act itself cannot be limited in any other way.

Question 7

Obscenity (Miller Test)

Answer 7

1. Appeals to prurient interest when applying community standards
2. Depicts patently offensive way sexual conduct as defined by state law, AND
3. Taken as a whole lacks serious literary, artistic, political, or scientific value

Question 8

O’Brien Test of Government Regulation of Speech

Answer 8

1) Is gov’t regulation within the power of the gov’t?
2) Does the regulation in question further a substantial gov’t interest?
3) Is the gov’t interest unrelated to the suppression of speech?

Draft card context

Question 9

Speech Time Place and Manner Restriction

Answer 9

Restriction will be upheld if:

1) Restriction is content neutral
2) Narrowly tailored to serve significant gov’t interest
3) Ample alternate channels of communication