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1)
The first amendment
a)
Congress shall make no law respecting
i)
an establishment of a religion, or prohibiting the free
exercise thereof;
ii)
or abridging the freedom of speech,
iii)
or of the press,
iv)
or the right of the people peaceably to assemble,
v)
and to petition the Government for a redress of grievances.
b)
Incorporation: applicable to the states via 14th am. DP
clause
i)
establishment: Eberson (sep. of church and state)
ii)
religion: Cantwell
iii)
speech: Gitlow
iv)
press: Near
v)
assembly: DeJohn
vi)
petition: ??
2)
Speech
a)
The right to free speech is not absolute (even though it looks that way)
[preferred rights approach to the C, not the absolutist approach, which never
got majority of Court]
i)
Content Based:
Direct regulation of speech.
(1)
What is it? A direct regulation is a content based regulation. We make
laws regarding what your message can contain; what you can communicate.
(2)
what we directly regulate (content based regulations):
(a)
clear and present danger Shenck
(b)
fighting words Chaplinsky
(c)
obscenity Miller (very subjective test)
(d)
defamation NY Times v. Sullivan
(e)
commercial speech
Central Hudson
(f)
lemon test Reynolds & Lemon
(g)
?compelling state interest if
there is a compelling interest, will pass strict scrut.
ii)
Content Neutral:
Indirect regulation of speech is permissible if
the regulation is…
(1)
content neutral
(2)
narrowly tailored
(3)
leaves ample alternative channels
3)
Flowchart
a)
unprotected
(predefined
categories)
i)
advocating illegality
ii)
defamation
iii)
obscenity
iv)
fighting words
v)
fraudulent misrepresentations
b)
Content Based [must also be protected => subj. to strict scrutiny
(presumed unC’al)]
i)
compelling gov’t objective
ii)
as narrowly tailored as possible (necessary)
c)
Content neutral
i)
significant government interest
ii)
narrowly tailored (need not be lease restrictive means)
iii)
leaves open alternative channels for communicating the information
d)
Time, place & manner regulations: applies to pure speech & expressive
conduct
i)
content-neutral
ii)
narrowly tailored
iii)
to serve a significant government interest
iv)
leaves open alternative channels for communication
e)
overbreadth: a statute must pass muster for all the speech it regulates;
i)
e.g. if it regulates fighting words, but also regulates protected speech,
the part of the statute that regulates protected speech must pass the applicable
test (strict or intermediate scrutiny, depending on content based or neutral
regulation)
ii)
exception to standing: if only the fighting words part of the statute is
applicable to the P, usually the P wouldn’t have standing to assert the rest
being unC’al, but for 1st am, he can.
f)
Facially and As Applied: any law can be facially invalid (no blacks can
have parades) or unC’al as applied to the P (city manager won’t give black
groups parade permits).
g)
Misc:
i)
government interest: is it a captive audience
4)
Advocating Illegal Action
a)
Branzburg v. Ohio test: The government can make illegal advocating crime
or use of force if:
i)
the advocacy is intended to incite or produce “imminent lawless action”
and
ii)
the advocacy is in fact likely to incite or produce imminent lawless
action.
b)
Schenck v. US
Clear & Present Danger test (this is the old test that gave rise to Branzburg
test)
i)
subjective intent
(1)
does Congress have a right to do what is being advocated against? (draft
people)
(2)
does Congress have a right to punish ppl who don’t follow the law? (ppl
who don’t report for induction)
ii)
objectively
(1)
is there a clear & present danger that will bring about harm?
(2)
this is a question of proximity and degree
iii)
Dennis
the test is a q. of law for the judge
c)
Abrams:
advocated overthrough of government, but nothing happened (and not likely to
happen), so fails objective part of Clear & Present danger test
d)
Whitney:
the solution to bad speech is more speech!
e)
Scales:
there is freedom of association; to be convicted of association, you must be:
i)
a member
ii)
who is active & knowing
iii)
and presently advocates illegal action
5)
Freedom of the Press & Defamation
a)
Defamation:
(NY Times v.
Sullivan)
can only recover in tort if…false and
i)
Public officialà
Knowledge of falsity or reckless disregard for veracity [actual malice]
(1)
Public official Rosenblat
(a)
Those among the hierarchy of gov’t that have or appear to the public to
have substantial responsibility for the control of governmental affairs
(b)
Need not be paid; need not even have actual authority (if it
appears you have).
(2)
Monitor
rule: anyone who ever runs for public office can always have charges of
criminal conduct released subject to the NYT actual malice rule.
(3)
Test:
(a)
False
(b)
About official conduct
(c)
With actual malice (knowledge or reckless disregard for veracity)
(d)
Identifiable character
(e)
[Prove damages; can get actuals & punies on showing of actual malice]
ii)
Public figureà
Knowledge of falsity or reckless disregard for veracity [actual malice]
(1)
Limited public figure: only held to “public figure” standard if press
info relates to their public-ness
(2)
Involuntary public figures: only held to “public figure” standard for
the thing they are involuntary public figure about (ex. criminal defendant)
(a)
Public figures: have no governmental capacities
(i)
All purpose public figures: who b/c of reputation, wealth, etc. is for
all intent and purposes a public figure (ex-presidents, jfk jr.)
à
public for all facets of life
(ii)
Limited public figures: voluntarily cast themselves into the vortex of
public discussion for specific issue
à
for the purposes of that specific issue, they are public figures.
1.
going to court is not a choice, so not thrusting self into vortex of
public opinion Time v. Firestone
(adultery case)
2.
you can’t make the person a public
figure through the defamation itself Hepps
(b)
Test: actual malice
iii)
Private figureà
states pick the standard of their tort Gertz v. Welch
(1)
as long as it’s not strict liability (need at least negligence)
(2)
must show actual malice (knowledge/reckless disregard) to get punitives
(3)
private citizens
(a)
test:
(i)
must show at least fault (only); no strict liability
(ii)
states may impose any bop they want as long as fault (Texas = negligence)
(iii)
punitive damages
à
must show actual malice (knowledge/reckless disregard)
(4)
credit reports Dun & Bradstreet
(a)
if credit reports are a matter of “public concern”
à
usual private citizen test (fault for compensatory damages; actual malice for
punitive damages)
(i)
public concern: must be determined by content, form and context as
revealed by the whole record Connick test
(b)
if credit reports are not a matter of “public concern”
à
can get actuals and punitives with a showing of fault, only
b)
IIMA: can’t recover for IIMA unless you show actual malice [same standards as
defamation Hustler Magazine v. Falwell]
i)
To recover for IIMA a public figure or official must prove actual malice;
why? too hard to judge what is “outrageous”
c)
Justifications:
i)
public figures receive less protection b/c of marketplace of ideas;
ii)
need to out things about one running for office;
iii)
they have voluntarily subjected selves to limelight
d)
“reckless disregard” Herbert case
i)
prove journalist entertained serious doubts as the truth of the
publication (subjective)
ii)
a subjective awareness of probably falsity may be found if there are
obvious reasons to doubt the veracity of the information
e)
opinions: Milkovich q of
fact for jury
i)
opinions are protected
ii)
unless they have objectively verifiable fact components (then it can be
fact, and therefore be defamation)
f)
quotations Masson
i)
if a quotation doesn’t represent what a person said, that can be
defamation
ii)
a deliberate
alteration of a quotation is not defamation as
long as there is no material change in the meaning of the statement (you can lie
a little, just don’t lie a lot)
iii)
even though something is in quotation marks & is not a quote, it’s not
defamation unless there is a material change in the meaning of the statement
g)
literally true, but false impression
i)
Turner
case (Texas SCt); this has not been addressed by
US SCt.
ii)
Test: if discreets facts (though true) create a substantially false
impression by omission, juxtaposition and misleading, it is “false” for
defamation purposes
6)
Obscenity
a)
Obscenity is unprotected, to it can be banned, punished,
anything. The argument is always over whether or not it is obscene.
b)
Obscene if (must meet all 3): Miller
test
i)
Prurient interest: applying today’s community standards for the
average person, the work as a whole appeals to the prurient interest
ii)
Sexual conduct: the work must depict in some patently offensive way,
particular types of sexual conduct defined by state law (not mere nudity)
and
iii)
Lacks value: the work, as a whole, must lack serious literary, artistic,
political or scientific value.
c)
If obscene (and not just “indecent”), it can be regulated totally
except you can’t criminalize the private-home possession of it (Stanley
v. GA).
i)
You can ban distribution of obscenity, though.
ii)
You can ban the mere possession of child pornography
(Osborne).
d)
If indecent:
i)
Can’t substantially impair adult access to the materials.
ii)
Can ban minors’ access to the materials b/c minors interest in getting
indecent materials outweighed by compelling gov’t interest.
e)
Roth:
obscenity is not Constitutionally protected speech
f)
Is it indecent (protected) or obscenity (unprotected)? Miller
test
i)
Prurient interest:
(1)
Whether to the average person
(a)
Average person: the average person to whom the publisher designed the
publication for; the audience to whom material is directed. Michelin v. NY
(2)
Applying contemporary community standards (this will change based on time
and community)
(a)
Local community standard is flexible; you can do one of 3 things
Jenkins v. Ga
(i)
Tell the jury nothing (let them use their own jj),
(ii)
Tell the jury it is a state wide standard (Texas follows this), or
(iii)
Say it’s a local or regional standard as the court cares to define it.
(3)
The dominant theme of the material, taken as a whole appeals to
one’s prurient (a longing desire)
interest in sex.
ii)
Patently offensive
(1)
Portrays in a patently offensive way
(2)
Sexual conduct specifically defined by the applicable state law
(a)
e.g. state statute must set out specifically what you can’t do; almost
forces state to define obscene
iii)
Lacks merit
(1)
The work, taken as a whole, lack serious literary, artistic, political or
scientific value
(a)
Use the rzbly prudent man standard Pope v. Ill
(b)
Local community standard applies to 1 & 2, but 3 is always the same.
g)
Federalism Paris Adult Theaters
i)
The states can do away with all obscenity regulations (b/c that wouldn’t
abridge free speech to allow indent and obscene materials to be published).
ii)
But if there is federal law about obscenity, you can be indicted under
federal law b/c it doesn’t preempt state law.
iii)
But congress can only regulate pursuant to art I, so you have to
use/bring/transport the porn in the channels of interstate commerce to run afoul
of the Comstock act.
iv)
You cannot use US ports of entry to distribute obscenity. Reels of
Super 8 mm
h)
Pandering Ginsburg v. US
i)
The material is not obscene, only indecent, but the ads make it seem
obscene. This is illegal per this opinion (still good law in that never
overruled).
ii)
Pandering: Leer of the sensualist permeates the advertising of the
magazine.
i)
Children Michelin, Ferber
i)
Indecent
material is legal (not obscene) but it cannot be sold to minors.
ii)
You can adjust the test downward for minors ???
iii)
Child pornography is not entitled to first am protection as long as the
prohibited conduct is adequately defined by state law. Ferber
j)
Indirect speech regulations:
i)
Calif. v Larue:
liquor law prohibited alcohol being served where nude dancing was
(1)
Held:
statute doesn’t regulate dancing, but only liquor
(2)
This is a legit. police power concern
ii)
Renton:
indirect speech regulation
(1)
Anti-skid row statute (couldn’t have xxx establishments w/in 200 feet of
ea other)
(2)
Indirect speech regulation b/c didn’t ban xxx establishments altogether
(3)
O’Brien Test: Content neutral time, place, and manner
restrictions okay so long as [if not
content neutral, go back to strict scrutiny]
(a)
narrowly tailored
(b)
to serve a substantial governmental interest [unrelated to
the suppression of free speech (if is, go back to strict scrutiny)] and
(c)
there are alternative channels to communicate the information.
iii)
Nude dancing, etc.
(1)
Just being nude is not expressive conduct but regular conduct => rational
basis.
(2)
Nude dancing is expressive conduct (indirect regulation on speech) =>
O’Brien test.
k)
National Endowment for the Arts: amended NEA act to fund only certain
types of art; this is a content based law, but we’re not restricting them, we’re
funding them. Poss exam q
7)
Fighting Words
a)
Words which are likely to make the listener commit an act of violence
(prob. against the speaker) can be flatly prohibited by the gov’t. But the
police must try to control the crowd if rzbly possible. Must actually be
fighting words, not just the identity or lawful acts of the speaker that make
the crowd likely to be violent. Profanity is allowed, is not a fighting word,
and may not be banned (unless obscene or something). Chaplinsky
b)
Test: what men of common intelligence would think are words likely to
cause an average person to fight [changes per times/circumstances]
c)
Fighting words doctrine can apply to expressive conduct (“fuck the draft”
jacket)
d)
Imminent threat of spectator violence (heckler’s veto): no right to free
speech if
i)
Imminent threat of spectator violence
ii)
That the policy have no capacity to control
iii)
[you have the right to say everything you’re saying, but not to
provoke a riot]
8)
Commercial Speech:
protected
by first am. (but ltd. protection)!
a)
Def: speech advertising a product or proposing a commercial transaction.
b)
Truthful speech:
(mid-level review)
Va Pharmacy Board
i)
Directly advances
ii)
Substantial government interest
iii)
No more extensive than necessary
c)
False, deceptive, illegal speech:
i)
False, deceptive, illegal speech may be forbidden by gov’t. But as long
as product is illegal, it must get same gov’t protection as everything gets (ie
as long as cigarettes are legal, they must be allowed to advertise).
ii)
Speech proposing an illegal transaction may be forbidden.
d)
Sometimes commercial speech gets C’al protection per Va State Bd. of
Pharm.
e)
Commercial speech is C’ally protected if:
Central Hudson test
i)
It is not misleading & relates to lawful commercial activity,
ii)
There is a substantial governmental interest in regulating the speech,
iii)
The regulation directly advances the asserted governmental interest,
iv)
The regulation is no more expansive than necessary (which doesn’t mean
“least restrictive means, but means “reasonable fit” per Fox)
f)
Even if a regulation seems like a commercial speech regulation, if
it is content based, used compelling/narrow test. (Con Edison)
g)
Unprotected commercial speech: information we require professionals to
include is tested only by a rzblness standard (rzbly related to the state’s
interest in preventing consumer deception).
h)
Lawyers: state bar can limit personal solicitation for pecuniary gain;
why? b/c substantial gov’t in terest
i)
Can put prior restraints on commercial speech (require letter to be sent
to state bar before sent to potential clients), but a blanket ban on speech
won’t be allowed unless the speech is deceptive or related to illegal activities
(44 liquormart said you can’t stop all liquor price ads altogether).
9)
Speech in Public Employment:
a)
Campaign spending: Congress can limit what people can contribute to
campaigns. Buckley v. Valeo (But can’t limit what a candidate may spend
of his own money or how much money a supporter spends independent of the
campaign, trying to get Mr. X elected.)
b)
Connick v. Meyers:
if the speech is on a matter of public concern
à
court must subjectively balance the speech rights of the employee v. the
government’s (employer’s) rights in promoting job efficiency. [If not speech on
matter of public concern => gov’t can pretty much fire him.]
i)
Public concern:
Rankin
when
employee said about Reagan’s shooting “next time I hope they get him” it was
political commentary and thus speech on a matter of public concern
c)
Connick
test: adverse employment action
i)
Is the speech fairly related to a matter of public concern?
(fairly related to a matter of political, social or other community concern) (if
statement made in public, then more likely to be matter of public concern);
àP
has burden to prove was re: matter of public concern from the
(1)
Content,
(2)
Form &
(3)
Context …of the whole record
[not just shock talk]
ii)
Apply subjective balancing test to determine whether employee may
be disciplined àburden
shifts to employer
(1)
Speaker’s interests in making statement (how valuable is the speech) v.
(2)
Interest of the state as an employer in promoting efficiency of the
public services the gov’t performs; does the statement…
(a)
Impair discipline structure?
(b)
Have a detrimental impact on close working relationships?
(c)
Impair the performance of the speaker’s/others’ duties or the regular
operation of the enterprise?
(d)
Lower morale?
d)
We don’t know what employee said:
Waters v. Churchill
i)
What would a rzbl employer find was said?
ii)
To be a rzbl employer, the employer must conduct a rzbl investigation
(formal/informal) to determine what was said. Even if employer makes wrong
conclusion, that’s okay b/c if you follow rzbl procedures, it’s safe harbor that
you are the rzbl employer.
e)
Independent contractors (employed in public sector) get same protection.
f)
You cannot fire ppl solely based on their beliefs (applies to non-policy
making, non-confidential employees).
g)
Immunity
i)
School board gets no immunity
ii)
Superintendent gets qualified immunity, but if bad faith (knew/should
have known unC’al) => no immunity
10)
Hate Speech
a)
analysis:
i)
usually content based
ii)
gvmt can ban all hate speech, but usually they describe what is hate
speech (you can’t burn a cross) and that is content based and usually fails
strict scrutiny
iii)
gvmt may ban all fighting words, but not those motivated by racial bias
(that would be content based)
iv)
penalty enhancing statutes: allowed b/c this are already crimes &
they may be punished more severely for racial animus b/c its like scienter
b)
content based or content neutral?
i)
If it’s a time, place & manner restriction, then probably content
neutral, but usually these statues are content based.
ii)
Content based:
(1)
Compelling gov’t interest
(2)
Narrowly tailored.
c)
penalty enhancing statues: Wis. v. Mitchell 9-0
i)
okay b/c we are punishing criminal conduct, not speech & not for abstract
beliefs
ii)
but gov’t may not introduce evidence of affiliation w/ hate group (KKK)
in a criminal trial b/c unrelated to crime & violates freedom of ass’n
(Dawson v. Delaware)
iii)
still must have a direct causal connection between the motivation
(beliefs) and the crime
11)
Symbolic Speech (expressive conduct)
a)
Test:
i)
Content based => strict scrutiny
ii)
Content neutral: Time place & manner restrictions must be
(a)
Narrowly tailored
(b)
To serve a significant gov’t interest
(c)
And leave alternative channels to communicate the info.
b)
Prior restraints & the press (NY Times v. US): the gov’t generally can’t
get injunction against story or force press to get a permit for speech b/c this
is a prior restraint & to sustain prior restraints we require a gov’t interest
of the highest order.
i)
Prior restraints are okay when: Nation at war, obscenity, inciting
violence, defamation (but see NYT v. Sullivan)
c)
Symbolic speech: where an actor engages in conduct intended to
convey a message and the reasonably prudent receiver would understand the
message. (e.g. burning draftcard, armband)
d)
O’Brien test:
i)
Xx
ii)
Xx
iii)
Xx
e)
Indirect Restrictions on Speech (time, place, manner)
i)
Content based? Go to track one; Content neutral (time, place, manner) =>
(1)
Narrowly tailored
(2)
To serve significant gov’t interest
(3)
Ample alternative channels
=> regulation C’al
f)
Symbolic Speech (conduct) restrictions:
i)
Is it w/in the govt’s power to make these laws? (look to enumerated
powers in 1.8)
(1)
Serves an important or substantial gov’t interest
(2)
Incidental restriction on speech (unrelated to the suppression of free
speech) (content netural) [if not, go to track one]
(3)
No greater than is necessary?
g)
Content based:
i)
Compelling government interest
ii)
Narrowly tailored
ex) Tinker:
in trouble for wearing black armbands to school in protest of war; this was
content based.
h)
Schools:
i)
Can have prior restraints in public schools (not college) b/c
compelling??
ii)
Primary purpose of school newspaper is class, not speech
iii)
Test: so long as restriction is rzbly related to legitimate pedagogical
concerns => okay.
i)
I have no idea
when you use TPM test (as in Clark v. Community for Creative tenting ban) and
when you use symbolic speech test (as in flag burn cases)
j)
Flag burning cases: use O’Brien test for symbolic speech:
i)
Within govt’s power?
ii)
Further important gov’t interest?
iii)
Unrelated to suppression of free speech (content neutral)?
ß
usually flag
burning statutes fail here & go to track one (strict scrutiny)
iv)
No greater than necessary?
12)
Public Forums
a)
Content based? Then strict scrutiny
b)
Content neutral:
i)
public forums:
(a)
two types:
(b)
true public forum (I)
(i)
these are public forums by custom & tradition, not b/c of any gov’t
policy; streets, sidewalks and parks
(c)
designated public forum (II)
(i)
places gov’t has decided to open up to the public (a broad range
of ppl)
(ii)
these follow same rules, except the gov’t can change its mind
ii)
non public forum (III)
(1)
regulation must be
(2)
rationally related to
(3)
some legitimate gov’t objective
(4)
leaves open alternative channels
(5)
you
can ban expression on a topic if passes mere rationality, but can’t forbid
certain viewpoints! (Krishna v. Lee)
c)
pure
public forums
i)
def: public facilities or institutions created for the primary purpose
of public communications (streets sidewalks and parks)
ii)
gated communities:
(1)
public forums includes private residential gated communities
(2)
as long as you don’t target one house (jj call b/c home is last citadel
of privacy); b/c picketing whole street is ample alternative channel
iii)
can be created by dedication, but if so, they can be “un-dedicated”
iv)
you have a C’al right to access pure public forums
v)
test:
(1)
content based? Track one; content neutral (TPM)?
(a)
Substantial govt interest
(b)
Narrowly tailored: eliminates no
more than the exact source of the evil it seeks to remedy
(is this the test for all narrow tailoring or
just for pure public forums???)
(c)
Alternative channels
d)
limited
public forums (semi-public forums) isn’t this
the same test as pure?
i)
Not created for public interchange, but purposes clearly related to
expression (schools, libraries, fair grounds)
ii)
Test: the gov’t can preserve the tranquility that the forum’s central
purpose requires
(1)
Content based? Track one; content neutral (TPM)?
(a)
Substantial gov’t interest
(b)
Narrow
(c)
alternatives
e)
non
public forums (governmental institutions)
i)
def: doing the people’s bsns, but not performing speech related fx’s at
all
ii)
ex. hospitals, jails, military bases, welfare dept, gov’t offices,
airport, SCt.
iii)
test: regulation must be rzbl, but can be content based! as long
as rzbl (can’t be restricted unless it interferes with normal activities in the
office)
(1)
IF you’re allowed to speak, they can’t restrict your viewpoints
(but they can make entire subj. off-limits). Lamb’s Chapel
(2)
Access to non-public forums can be content based as long as rzbl.
(3)
But must be viewpoint neutral: if you allow speech on that topic, you
must allow speech on all POV’s re: that topic.
iv)
note: there are also private places – Wal-mart, tv public access (no rt.
to be there)
f)
identifying content based v. content neutral limits on speech in public
forums:
i)
if the gov’t charges a permit fee => okay, but if they charge different
permit fees depending upon the type of speech (or listener’s reaction to speech)
=> content based Forsyth Cty.
ii)
If we open up gov’t water plant for a recycle day, can we keep out PETA?
Yes, if rzbl b/c we haven’t converted the plant to a public forum by opening for
one day for recycling; this isn’t about speech; no one is expressing views.
g)
Pinnette
13)
Right not to be associated with
particular ideas
a)
Def: if gov’t forces an individual to give money to a cause they don’t
like or makes a group accept new members it doesn’t want => strict
scrutiny.
b)
Freedom of association: gov’t can’t make mere membership in a group illegal
unless group (1) does illegal stuff or incites others to do illegal stuff and
(2) the member knows of the group’s illegal activity & specifically intends
to further the illegalities.
c)
There is a C’al right not to speak.
i)
Barnette
Jehovah children wouldn’t salute flag
ii)
Keller
state bar can require lawyers to give $ to regulate profession, but not to
further views he doesn’t agree with (rt to not endorse views)
iii)
Hurley v. Irish Am Gays
(1)
Facts: Irish parade didn’t want gays in parade. All paraders had to
apply for permit. Gays not given permit.
(2)
Tests:
(a)
Parade is expressive conduct
(b)
But gov’t wasn’t keeping Gays from having their own parade
(c)
Original parade had first am. right to speak alone & he did not
lose his first am protection to speak by inviting others to speak with him; he
had absolute autonomy over the message he wants to convey. (right not to be
associated with others’ ideas).
(d)
Did the parade
guy have to be rzbl & vp neutral per non-public forums, or is non-public forums
only govt’al forums?
d)
Don’t have to let opposite party vote. Calif Democratic Party v.
Jones
14)
Anonymous Speech: McIntyre v. Ohio Elec. Comm.
15)
Advocacy through ballot measures: Buckley v. Am Con Law Foundation
16)
Free speech and political corruption: Nixon v. Shrink
17)
Religion
a)
The Constitution:
i)
Establishment Clause: Congress is prohibited from establishing a
religion
(1)
Everson
incorporated establishment; pupil benefit
theory: money didn’t go to church but to the students/parents to support a
legit. state goal (education)
(2)
Cantwell v. Connecticut:
religious freedom incorporated into 14th am.; bans prior restraints
on religion
ii)
Free Exercise: do not interfere w/ people’s t. to worship God according
to the dictates of one’s conscience
(1)
US v. Reynolds
secular regulation rule: no one can object to a neutral state
police power that is generally applicable on the basis of religion (Amish
exception)
b)
Release Time Cases: never overrule but wouldn’t pass muster under
Lemon test
c)
Lemon Test start here w/ 4-10 notes
i)
gov't intent
The statute must have a secular legislative purpose (whether the gov’t actual
intent was to endorse or disapprove of religion)
ii)
actual effect
The primary effect of the statute must be one that neither advances no inhibits
religion. (O’Connor: would a rzbl observer perceive the
government’s action as an endorsement of religion? Lynch)
iii)
excessive entanglement
The statute must not foster an excessive entanglement of gov’t and religion.
Examine…
(1)
The character and purpose of institutions benefited,
(2)
The nature and aid that the statute provides,
(3)
The resulting relationship between the government and religious
authority.
d)
Psychological Coercion Test
i)
The government directly funds religion
ii)
The government directs a formal religious exercise
iii)
The government direction is in a way to oblige participation of
objectors.
e)
f)
What is the test???
Possible
questions
g)
What about cartoon porn on the Internet that look like children? |