UNIT 3

LESSON 2
Pages
266-277
Required Court Cases
Engel v. Vitale
Wisconsin v. Yoder
Schenck v. U.S.
Tinker v. Des Moines
New York Times v. U.S.

First Amendment Rights 1

 STUDENTS WILL KNOW THAT:
1. The interpretation and application of the First Amendment’s establishment and free exercise clauses reflect an ongoing
debate over balancing majoritarian religions practice and free exercise, as represented by such cases as:
– Engel v. Vitale (1962), which declared school sponsorship of religious activities violates the establishment clause
– Wisconsin v. Yoder (1972), which held that compelling Amish students to attend school past the eighth grade
violates the free exercise clause
2. The Supreme Court has held that symbolic speech is protected by the First Amendment, demonstrated by Tinker v. Des
Moines Independent Community School District (1969), in which the court ruled that public school students could wear
black armbands in school to protest the Vietnam War
3. Efforts to balance social order and individual freedom are reflected in interpretations of the First Amendment that limit
speech, including:
– Time, place, and manner regulations
– Defamatory, offensive, and obscene statements and gestures
– That which creates a “clear and present danger” based on the ruling in Schenck v. United States (1919)
4. The Supreme Court has on occasion ruled in favor of states’ power to restrict individual liberty; for example, when
speech can be shown to increase the danger to public safety
5. In New York Times Co. v. United States (1971), the Supreme Court bolstered the freedom of the press, establishing a
“heavy presumption against prior restraint” even in cases involving national security

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Is this legally allowed at public high school games?
What if the prayer
was lead by Michael
Scott and we were
Scott’s Tots?
 1st Amendment - Freedom of Religion
TWO CLAUSES THAT YOU MUST KNOW
• The Establishment Clause
– The Separation of Church and State
– “Congress shall make no law respecting the
establishment of religion…”
– Engle v. Vitale, 1962

• The Free Exercise Clause

– Free to practice your religion
– “… or prohibiting the free exercise thereof”
– Wisconsin v. Yoder, 1972
 FREEDOM OF RELIGION - THE ESTABLISHMENT CLAUSE
• No Government “Establishment of Religion” Lemon v. Kurtzman: Established a
– A “wall of separation” - Separation of church and 3-part test (the Lemon test) to
state (words of Jefferson; it is implied within 1st determine the constitutionality of a
Amendment, but not stated – kind of like “fair trial”) statute or practice:
1. Laws should have a secular
• Basic meaning of establishment clause:
(non-religious) purpose
government may not establish an official
2. Laws should be neutral
religion.
toward religion (neither
– “Accomodationist View”: Government should bend a
bit and allow a certain degree of church/state
advance nor inhibit religion)
blending (allowing nativity scenes on city property, 3. Laws should not be entangled
and allowing a non-denominational prayer in public with religion
school)
– “Separationist View”: Government should allow If any is present, the statute or
virtually no blending of church and state. There practice is unconstitutional
should be a “wall of separation” between the two.
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 SCHOOLS AND RELIGION
ACTIVITIES NOT PERMITTED:
• State-sponsored, recited prayer in public school is unconstitutional
• Teacher-led prayer is unconstitutional
• School-led prayer for any event is unconstitutional
• Devotional Bible-reading in public school Graduation prayers is unconstitutional
• Prohibiting the teaching of evolution in public school is unconstitutional
• Posting of the 10 Commandments in public school is unconstitutional
• Student-led prayer using PA system is unconstitutional
• Requiring all students to say the pledge is unconstitutional
• State money to pay for Bibles, chapels, field trips, etc. for private schools is unconstitutional

ACTIVITIES PERMITTED:
• Moment of silence in public school is constitutional (as long as the purpose is not stated as
being for prayer).
• Purchasing textbooks, lunches, bus transportation for private schools is constitutional
• Allowing students to meet on campus for religious groups (such as Christian Club) is
constitutional
• Use of public school building by religious groups is constitutional
• Voluntary after-school Bible study in public school is constitutional
• Released time for students is constitutional
• Public money to private schools as long as it does not violate the Lemon Test
Engle v. Vitale (1962)
Issue: Does the recitation of a prayer in public schools violate
the Establishment Clause of the First Amendment?

Majority: The Court ruled that the school-sponsored prayer was

unconstitutional because it violated the Establishment Clause. The
prayer was a religious activity composed by government officials
(school administrators) and used as a part of a government program
(school instruction) to advance religious beliefs. The Court rejected
the claim that the prayer was nondenominational and voluntary.
"There can, of course, be no doubt that New York's program of daily
classroom invocation of God's blessings. . . in the Regents' prayer is a
religious activity," Justice Black wrote. "We think that by using its
public school system to encourage recitation of the Regents' Prayer,
the State of New York has adopted a practice wholly inconsistent
with the Establishment Clause."
 FREEDOM OF RELIGION – FREE EXERCISE CLAUSE
• Provides Freedom of Worship • Religious practices that have been
permitted:
• Religious practices that have been
– Not saluting flag in public school
restricted: (Jehovah’s Witnesses)
– Polygamy (Reynolds v. U.S.) – Not sending children to school past
– Drug use (Oregon v. Smith) the 8th Grade for Amish (Wisconsin v.
– Not vaccinating children of Christian Yoder, 1972)
Scientists before they enter school – Animal Sacrifice (Santeria case)
– Not paying Social Security taxes
(Amish) • Article 6 bans religious
– Wearing a Jewish skullcap tests/oaths as qualifications to
(Yarmulke) in the military hold public office.

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Wisconsin v. Yoder (1972)
Issue: Under what conditions does the state’s interest in promoting compulsory
education override parents’ First Amendment right to free exercise of religion?

Majority: The Supreme Court held that the Free Exercise Clause of the First
Amendment, as incorporated by the 14th Amendment, prevented the state of
Wisconsin from compelling the respondents to send their children to formal
secondary school beyond the age of 14.

The Court ruled that the families’ religious beliefs and practices outweighed the
state’s interests in making the children attend school beyond the eighth grade. The
Court first satisfied itself that, according to expert testimony in the record, the
requirement to send their children to school beyond the eighth grade would
actually interfere with well-established and deeply held religious convictions.

The Court then rejected the state’s arguments for overriding the parents’ religious
beliefs. The Court commented that an additional one or two years of high school
(until the required age of 16) would not produce enough educational benefits for
the Amish to constitute a “compelling government interest.”
 ESSENTIAL QUESTION CFU

Discuss the two religion cases

and two religion clauses with
your partner.

Do YOU have to say the Pledge

of Allegiance?

Why are we allowed to have a

Christian Club on campus?

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 Is this legally allowed in public?
Should it be allowed if it is legal?
 Is this what our Founders
meant by giving individuals
“freedom of speech” and
“right to assemble” under
the 1st Amendment?

Supporter of the Westboro Baptist

Church picketing the funeral of a
soldier who died in Iraq
 Does freedom
of speech Or this?
include this?

Or this?

Arm bands? Yes (Tinker v. Des Moines)

Flag burning? Yes (Texas v. Johnson)

Bong hits? No (Morse v. Frederick)

 IS ALL SPEECH FREE?
You are not free to publish obscene materials. You are not free to lie or slander others nor
can you write falsely (libel). There are numerous court precedents that define when and
where our free speech can and cannot be limited.
Schenck v. United States, 1919
• Ruled that the First Amendment guarantees are not absolute and must be considered in the light of the
setting in which supposed violations occur
• Established the clear and present danger test; Created a precedent that 1st Amendment guarantees of free
speech are not absolute and dangerous speech can be limited
• “…Free speech would not protect a man in falsely shouting fire in a theater”
• Speech may be restricted when it incites violent action (imminent threat to society)

Brandenburg v. Ohio, 1969

• SCOTUS limited the clear and present danger test
• Ruled that the government could punish the advocacy of illegal action only if “such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce such action”
Schenck v. United States (1919)
Issue: Did Schenck’s conviction under the Espionage Act for criticizing the draft
violate his First Amendment free speech rights?
Majority: Justice Oliver Wendell Holmes delivered the unanimous opinion for the Court in
favor of the United States. Holmes accepted the possibility that the First Amendment did not
only prevent Congress from exercising prior restraint (preemptively stopping speech). He said
that the First Amendment could also be interpreted to prevent the punishment of speech after
its expression.

Yet, according to Holmes, “the character of every act depends upon the circumstances in which
it is done.” In the context of the U.S. effort to mobilize for entry into World War I, the
Espionage Act’s criminalization of speech that caused or attempted to cause a disruption of the
operation of the military was not a violation of the First Amendment. According to Holmes,
“when a nation is at war, many things that might be said in time of peace are such a hindrance
to its effort that their utterance will not be endured so long as men fight and that no Court
could regard them as protected by any constitutional right.”

Holmes held that some speech does not merit constitutional protection. He said that
statements that create a “clear and present danger” of producing a harm that Congress is
authorized to prevent, fall in that category of unprotected speech. Just as “free speech would
not protect a man in falsely shouting fire in a theatre and causing a panic,” the Constitution
does not protect efforts to induce the criminal act of resisting the draft during a time of war.
 NON-PROTECTED SPEECH
Supreme Court holds that all speech
is protected unless it falls into one of
the four narrow categories:
1. Libel and slander
2. Obscenity and pornography
3. Commercial speech
4. Fighting words

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 NON-PROTECTED SPEECH
• Libel and slander
– Libel is a written defamation that falsely attacks a person’s good name and reputation
– Slander is a spoken defamation that falsely attacks a person’s good name and reputation
– Limits on student speech
• Bethel v. Fraser (1986) – school can suspend a student from school for making a speech full of sexual double entendres or
innuendos.
• Obscenity (i.e. pornography)
– Miller v. California (1973) gave constitutional definition of obscenity
1. Appeals to prurient interest in sex,
2. Patently offensive, and
3. Must lack serious literary/artistic/political/scientific value.
• If not meeting all three criteria, then not obscene
– Sexually explicit materials about or aimed at minors are not protected by the First Amendment
• Commercial speech
– Commercial speech (such as advertising) is more restricted than are expressions of opinion on religious, political, or other matters.
– The Federal Trade Commission (FTC) decides what kinds of goods may be advertised on radio and television and regulates the
content of such advertising.
• Fighting words 17
– Governments may punish certain well-defined and narrowly limited classes of speech that by their very utterance inflict injury or
tend to incite an immediate breach of peace
 ESSENTIAL QUESTION CFU
What is a modern-day example of “clear and present danger”?

Should America limit speech (think about hate speech)?

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 PROTECTED SPEECH
• Prior restraint
– Blocking speech before it is given.
– Such action is presumed by courts to be
unconstitutional.
– In the Pentagon Papers case (New York Times v.
Flag burning is constitutionally
U.S.), the court refused to impose prior restraint: protected as symbolic speech. Do
the revelations may have embarrassed the we have too many rights when it
government, but they did not endanger national comes to freedom of speech?
security.

• Symbolic speech
– Tinker v. Des Moines (1969) – wearing black
armband at school at protest Vietnam War
– Texas v. Johnson (1989) – flag burning 19
 EXAMPLE OF PRIOR RESTRAINT

In the famous case of New York Times v. United States (1971), the U.S. government sought a court
order to keep the newspaper company, New York Times, from printing “The Pentagon Papers.” These
documents entailed U.S. secret missions and involvement in the Vietnam War, which were stolen and
leaked to the press.

The Nixon Administration, battling the Watergate Scandal at the same time, tried to prevent (prior
restraint) the documents from being published.

The Burger Court found that the government couldn’t show the papers endangered national security
enough to justify prior restraint.
New York Times v. U.S. (1971)
Issue: Did the government’s efforts to prevent two newspapers from publishing
classified information given to them by a government leaker violate the First
Amendment protection of freedom of the press?

Majority: The Supreme Court ruled, 63, for the newspapers. The Court issued
a short majority opinion not publicly attributed to any particular justice—called
a per curiam (or “by the Court”) opinion—and each of the six justices in the
majority (Justices Black, Douglas, Stewart, White, Brennan, and Marshall)
wrote a separate concurring opinion. Chief Justice Burger and Justices Harlan
and Blackmun each filed a dissenting opinion. It is one of the few modern cases
in which each of the nine Justices wrote an opinion.

Per Curiam
The Court reaffirmed its longstanding rule that “[a]ny system of prior restraints
of expression comes to this Court bearing a heavy presumption against its
constitutional validity.” “The Government thus carries a heavy burden of
showing justification for the imposition of such a restraint.” The per curiam
opinion concluded, without analysis, that “the Government had not met that
burden” in these cases.
 Tinker v. Des Moines (1969)
Issue: Does a prohibition against the wearing of armbands in public school, as
a form of symbolic speech, violate the students’ freedom of speech
protections guaranteed by the First Amendment?

Majority: The justices said that students retain their constitutional right to
freedom of speech while in public schools. They said that wearing the
armbands was a form of speech, because they were intended to express the
wearer’s views about the Vietnam War. The Court said, “First Amendment
rights, applied in light of the special characteristics of the school environment,
are available to teachers and students. It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate....”

The Court stressed that this does not mean that schools can never limit
students’ speech. If schools could make a reasonable prediction that the
speech would cause a “material and substantial disruption” to the discipline
and educational function of the school, then schools may limit the speech. In
What about this case, though, there was not evidence that the armbands would
symbolic speech? substantially interfere with the educational process or with other students’
rights.
 FREEDOM OF THE PRESS - CONTROVERSIAL AREAS
• Executive Privilege • Courts have protected press's right to publish
– Right of presidents to withhold – The 1966 Freedom of Information Act
information from the courts. • Liberalized access to non-classified
– U.S. v. Nixon (1974): A President government records
generally does have executive privilege, • Electronic Freedom of Information Act of
but not in criminal cases. Even the 1996 requires most federal agencies to
President is not above the law. put their files online and to establish an
• Shield laws index of their records - NASA a leader
– Protect reporters from having to reveal (UFO documents!)
their sources. – Student Press
– The press claims that without them, their • Hazelwood v. Kuhlmeier (1988)
sources would “dry up,” and they would • High school newspaper can be regulated
be unable to provide information to the by the school is the school has a
public. legitimate pedagogical concern in
regulating the newspaper. 23
 FREEDOM OF THE PRESS
Commercial speech on radio and television are regulated by the FCC. The broadcast
media has less freedom than does print media.
 FREEDOM OF ASSEMBLY
PUBLIC FORUMS AND TIME, PLACE, AND MANNER REGULATIONS
• Governments may not specify what can or cannot be said, but they can make reasonable time, place, and
manner regulations for the holdings of assemblies, protests, or gatherings

• Police must have right to order groups to disperse (public order)

• Problem of “heckler’s veto”: if govt. restricted assembly every time an opposing group claimed that there
might be “violence or disorder” there would be very few assemblies. Courts are therefore reluctant to
impose prior restraint.

• The extent to which governments may limit access depends on the kind of forums involved:
– Public forums (historically associated with free exercise such as streets, parks)
– Limited public forums (public property such as city hall or schools after-hours)
– Nonpublic forums (libraries, courthouses, government offices) - can not interfere with normal activities in order to
stage a public protest

• Civil disobedience is not a protected right

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 ESSENTIAL QUESTION CFU
What is prior restraint? What was the majority opinion of
New York Times v. United States?

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You say you don’t know anything about the government? FALSE!
Everyone knows something about the government (and the
government knows something about everyone). What are the 3
most important ideas from this lesson?