First Amendment Freedoms Flashcards
Freedom of Religion & Separation of Church and State
The 1st Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Also applies to states through the 14th Amendment.
Establishment Clause (Discriminatory Legislation)
Laws that prefer one religion or religious sect over others invoke strict scrutiny.
Establishment Clause (Neutral Legislation)
Where legislation or gov program is neutral on its face the court will apply the Lemon test:
- the statute must have a secular legislative purpose
- the principal or primary effect or purpose must neither advance nor inhibit religion; and
- the statute must not foster an excessive gov entanglement with religion
Public Schools: Common Activities that Are Prohibited
- School Prayer
- Posting Ten Commandments on the walls of classrooms
- Prayer before a high school football game
- Rabbi/other cleric to conduct a non-demoninational prayer as part of a graduation ceremony
- However, religious clubs on school grounds are permitted.
Delegation of Authority to Religious Organizations
Is unconstitional
Tax Deductions for Religious Institutions
Tax exemptions for religious institutions will be upheld if the org. are treated the same as other non-profits. But tax exemptions only available to religious organizations will violate the Establishment Clause.
Government Aid to Religious Schools
Providing general funds such as bus fare to both public and religious schools is generally permissible. However, states cannot give money:
- to be used directly for religious instruction; or
- to religious secondary schools - even for the salaries of teachers of secular subjects because of the risk of “excessive government entanglement” (does not apply to universities).
Funding for Religious Colleges & Universities
The U.S. SC has upheld grants of public funding for religious colleges and universities when the funds are used for non-religious purposes.
Nondenominational Legislative Prayers
Do not violate the establishment clause.
Free Exercise Clause
A person’s religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief.
Rule for Free Exercise Clause
Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is “neutral in respect to religion and is of general applicability.”
Cases That Have Been Held to Violate the Free Exercise Clause
- The state can’t deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath.
- The state can’t require Amish children to attend high school.
Free Exercise Clause: Inquiry Into Beliefs
-The Free Exercise Clause prohibits inquiring into the truth or falsity of a person’s religious beliefs. However, the gov. can look into the sincerity of a person’s professed religious beliefs
Freedom of Expression
Prohibits Congress from making a law that abridges:
- freedom of speech
- freedom of press
- the right of the people peaceably to assemble
- the right of people to petition the government for a redress of grievances
Standard of Review For Restrictions of Speech
-SS applies when the government engages in content-based discrimination
Exceptions to Strict Scrutiny
Include:
- Child pornography
- Unprotected or low-value speech
- Government as speaker
- Content-neutral conduct regulation
- Content-neutral time, place, and manner regulation
Unprotected and Low-Value Speech
A regulation that relates to unprotected speech must pass the rational basis test. Include:
- speech that advocates violence or unlawful action
- fighting words
- hostile audience speech
- obscene speech
- defamatory speech
Unprotected Speech: Speech that Advocates Violence or Unlawful Action
Speech that is:
- directed to inciting or producing imminent lawless action, and
- is likely to incite or produce such action
Unprotected Speech: Fighting Words
Words likely to incite an ordinary citizen to commit acts of immediate physical retaliation may be punished. Must be a direct personal insult (cannot be merely annoying or offensive or directed to general public).
Fighting Words Statutes
That are designed to punish certain viewpoints are unconstitutional
Unprotected Speech: Hostile Audience Speech
Speech which elicits an immediate violent response from the audience may be prosecuted (e.g. disturbing police). However, the police must make a reasonable effort to protect the speaker.