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Government may make no law concerning the establishment of religion.
(1) secular purpose (2) primary purpose that neither advances not inhibits religion, and (3) avoids excessive government entanglement with religion.
Neutral aid to religious schools
Officially sponsored school prayer
Officially sponsored graduation prayer
Non-inspirational Bible reading
Display of Ten Commandments
permitted for secular purpose, not to inspire belief.
Laws prohibiting teaching evolution
okay for historical practices.
constitutional when other items which dilute religious message
Constitutional protection in religious belief is absolute.
Constitutional protection in religious conduct is qualified.
Generally applicable laws and free exercise
- Enforced despite religious objections.
- No right to accommodation.
Non-discrimination employment laws cannot be applied to ministers who work for religious organizations – this is construed broadly.
A state university that allows students to meet on campus must allow student religious groups equal access.
- Symbolic speech.
- (1) further an important interest (2) unrelated to the suppression of expression and (3) burden is not greater than necessary.
If government is trying to suppress a message
If government is pursue an interest unrelated to speech which impinges upon speech
Unconstitutional because they give no clear notice of what is prohibited, thereby violating due process.
- Laws which would be constitutional except that they go too far in regulating speech.
- A burden substantially more speech than is necessary to protect a compelling government interest.
judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful.
Regulation of time/place/manner are laws concerning regulation of speech in a public forum.
- Public forum
- A public forum is a place traditionally reserved for speech activities, such as a street, park and public sidewalk.
Speaker can be forced to go to a public forum (sidewalk outside).
Limited public forum
- Not a traditional public forum, but one that the government opens to all comers.
- Time/place/manner regulations are allowed.
- Three requirements – (1) content neutral regulations on its face and as applied which do not allow for executive discretion; (2) alternative channels of communication must be left open (cannot be a blanket prohibition); and (3) must narrowly serves a significant state interest.
- Not compelling – “makes sense to a judge.”
Unprotected expression - Obscenity
- The rule of S.
- (1) Sexy; “appeals to the prurient interest;”
- (2) society sick – patently offensive to the average person in society – local or national area;
- (3) standards – must be defined by standards that are not vague or overbroad;
- (4) serious value – not obscene if serious artistic, scientific, education or political interest.
- Made by court; national standard.
Unprotected expression -Incitement
Free speech not protected when incitement to immediate violence
Unprotected expression - Fighting words
- Speech likely to provoke an immediate breach of peace.
- Aimed at someone who might hit back, and general vulgarity is insufficient.
- Almost always unconstitutionally vague and/or overbroad.
Unprotected expression - Defamation
False statements of fact damaging a person’s reputation can be prohibited.
- If (1) truthful and (2) informational, then permissible.
- Regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest.
- Misleading speech may be prohibited.
- 1st amendment rights do not apply to the government as a speaker.
- The government can express a point of view.
- Government need not accept all monuments – when government is controlling the message, it is entitled to say what it wants.
Corporations free speech rights
have same free speech rights as persons.
Regulation of the Media
The media has no special privilege concerning freedom of speech except for broadcasters.
Government Employees Free speech
government employees cannot be hired or fired based upon political party, political philosophy or acts of expression – except for confidential advisors to the president or policy-making employees.
Campaign Finance & Free Speech
- Campaign contributions can be regulated, provided that the limits are not unreasonably low.
- Coordinated expenditures are disguised contributions where campaign is in control – can be regulated.
- Direct expenditures in support of a candidate/campaign/political issue cannot be regulated.
- Applies to persons, as well as corporations and unions.
Freedom of Association
- One cannot be punished because of political associations.
- Loyalty oaths to Constitution for federal employees permissible; other oaths are vague/overbroad.
- Bar examiners can investigate for good character but not deny bar admission because of political affiliation.
- States cannot require open primaries for political parties.
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