408

Front 1

Lemon Test

Back 1

1. The government's action must have a legitimate secular purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion; and
3. The government's action must not result in an "excessive entanglement" with Religion.

Front 2

Pure Speech

Back 2

Written and spoken words that fall within the scope of protection provided by the First Amendment to the Constitution.

Front 3

Symbolic Speech

Back 3

In analyzing such cases, the courts ask whether the speaker intended to convey a particular message, and whether it is likely that the message was understood by those who viewed it.
In order to convince a court that symbolic conduct should be punished and not protected as speech, the government must show it has an important reason. However, the reason cannot be that the government disapproves of the message conveyed by the symbolic conduct"

Front 4

West Virginia v. Barnette
Issue

Back 4

Whether a compulsory flag-salute law for school children violates the First and Fourteenth Amendments.

Front 5

West Virginia v. Barnette
Rule

Back 5

Held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school. Override Gobitis.

Front 6

West Virginia v. Barnette
Majority

Back 6

• “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
• "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities ... One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote." "But freedom to differ is not limited to things that do not matter much

Front 7

West Virginia v. Barnette
Minority

Back 7

. It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench.”

Front 8

Tinker v. Desmoines

Back 8

wearing black armbands to protest the Government's policy in Vietnam.

Front 9

Tinker v. Desmoines
Plaintiff Arg 1

Back 9

The plaintiffs argued, in the first place, that the wearing of armbands was the equivalent of speech and was thus protected by the First and Fourteenth Amendments. The First Amendment prohibits Congress from abridging freedom of speech, and the Supreme Court has expanded this prohibition to states under the Due Process Clause of the Fourteenth Amendment ("No State shall ... deprive any person of life, liberty, or property, without due process of law..." by interpreting liberty' to encompass the fundamental rights guaranteed by the First Amendment.

Front 10

Tinker v. Desmoines
Plaintiff Arg 2

Back 10

the action of the school authorities was capricious, arbitrary, and unreasonable because it simply singled out one form of expression—the black armband—rather than prohibiting the wearing of all controversial insignia. Furthermore, the administrators had permitted the wearing of political campaign buttons, and even the Iron Cross, in the schools. The action of the school authorities would have been understandable if they could show that trouble might ensue in the school.

Front 11

Tinker v. Desmoines
Rule

Back 11

In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

Front 12

Actual Malice

Back 12

In New York Times Co. v. Sullivan (1964), the Supreme Court defined actual malice as a state of mind in which a person or publication makes an untrue and defamatory statement about a person “with knowledge that it was false or with reckless disregard of whether it was false or not.” In order to recover damages for libel or defamation, a public official or public figure must be able to show by clear and convincing evidence that the defendant acted with actual malice.

Front 13

Texas v. Johnson
Issue

Back 13

Does flag burning present so great an offense to public peace that it should be prevented? Should the State of Texas be able to "protect the flag as a symbol of national unity"? Was the Texas law a violation of Johnson's freedom of political expression as guaranteed by the 1st Amendment? Was the burning "symbolic speech"? Does the 14th Amendment "incorporate" a 1st Amendment protection in the Texas constitution and override the Texas law prohibiting desecration of the American flag?

Front 14

Texas v. Johnson
Decision and Rationale

Back 14

political speech rather than simple vandalism. The actions occurred at the end of a political rally. "Taking offense" at political action is not, the Court ruled, sufficient reason to suppress speech or expression. Brennan granted that "[a]lthough the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct...and by criminally punishing a person for burning the flag as a means of political protest

Front 15

Texas v. JOhnson
Dissent

Back 15

"...the American flag has come to be a visible symbol embodying our nation and is not simply another idea or point of view competing for recognition in the marketplace of ideas...." As such, Rehnquist noted, "the public burning of the American flag...had a tendency to incite a breach of the peace...."

Front 16

Buckley v. Valeo

Back 16

upheld federal limits on campaign contributions and ruled that spending money to influence elections is a form of constitutionally protected free speech. The court also stated candidates can give unlimited amounts of money to their own campaigns.

Front 17

Buckley v. valeo
upheld

Back 17

The limitations on contributions to candidates for federal office * The disclosure and recordkeeping provisions of the FECA ); and
* The public financing of Presidential elections

Front 18

bucley v. valeo
unconstitutional

Back 18

# The $1,000 limitation on independent expenditures
# The limitations on expenditures by candidates from their personal funds and
# The method of appointing members of the Federal Election Commission

Front 19

NY times v. Sullivan
Question

Back 19

Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

Front 20

NY Times v Sullivan
holding

Back 20

The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).

Front 21

Hustler Mag. v Falwell

Back 21

political cartoon

Front 22

Hustler Mag v. Falwell
Issue

Back 22

Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?

Front 23

Hustler Ruling

Back 23

Yes violation. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice."

Front 24

Maxwell v Sheppard

Back 24

After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial. Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. On appeal from an Ohio district court ruling supporting his claim, the Sixth Circuit Court of Appeals reversed. When Sheppard appealed again, the Supreme Court granted certiorari.

Front 25

Maxwell Question

Back 25

What threshold must be crossed before a trial is said to be so prejudicial, due to context and publicity, as to interfere with a defendant's Fifth Amendment due process right to a fair trial?

Front 26

Maxwell Ruling

Back 26

the Court found that Sheppard did not receive a fair trial. Noting that although freedom of expression should be given great latitude, the Court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting

Front 27

Engle v. Vitale

Back 27

The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God,

Front 28

Engle Question

Back 28

Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment?

Front 29

Engle Rule

Back 29

Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality.

Front 30

Lee v. Weismann

Back 30

A Jewish parent in challenged the local school district's policy of including a prayer in its graduation ceremonies. overturn lemon

Front 31

Lee v. Weismann Decision & rationale

Back 31

the graduation prayer violated the Establishment Clause. The government's involvement in the religious exercise at graduation is 'pervasive'.

Front 32

Dissent Weismann & Lemon

Back 32

The Lemon Test (Lemon) should not be used as the defining test of what is permissible under the Establishment Clause because, "if applied with consistency it would invalidate longstanding traditions." Non-sectarian prayer at public gatherings and celebrations is a tradition that ought to be protected within the confines of the Establishment Clause.

Front 33

Wallace v. Jaffrey

Back 33

object ot silent mediation

Front 34

Wallace v. Jaffrey Ruling

Back 34

According to the state legislator who wrote the bill, the ‘or voluntary prayer’ clause was inserted for reg purpose

Front 35

Stone v. Graham

Back 35

10 commandments

Front 36

stone v. graham ruling

Back 36

used the Lemon test to analyze the constitutionality of the Kentucky law. The law violated the first prong- it did not have a secular legislative purpose, no educational message, support

Front 37

Lemon

Back 37

public assistance to private schools, some of which were religious. Pennsylvania's law included paying the salaries of teachers in parochial schools, assisting the purchasing of textbooks, and other teaching supplies.

Front 38

lemon rule

Back 38

here are three criteria that should be used to assess legislation: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster and excessive government Entanglement with religion." The two statutes in question violate the third of these criteria.

Front 39

Agostini v Felton

Back 39

The current proposal offered help to needy students in private schools by sending public school teachers to tutor them after school

Front 40

Agostinie Ruling

Back 40

teaching is okay bc

Front 41

Edwards

Back 41

creation and evolution must be taught where the other is taught

Front 42

edwards ruling

Back 42

unconstitutional
failed on all three prongs of the test. First, it was not enacted to further a clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a "supernatural being created humankind," a doctrine central to the dogmas of certain religious denominations. Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial support of government to achieve a religious purpose

Front 43

Allegheny County
facts

Back 43

Christian nativity scene inside the Allegheny County Courthouse. The second display was a large Chanukah menorah, erected each year by the Chabad Jewish organization, outside the City-County building. The ACLU claimed the displays constituted state endorsement of religion.

Front 44

Allegeny ruling
no christmas glory god

Back 44

Court separates Menorah from Nativity Scene, one is a centerpiece, one is a decoration. The court creates a new test, the context test. Pp 1096. The question of context is what? Look at the context of which this nativity scene has been placed. Does it seem that there is a favoritism, a way the gov’t has displayed this that seems to favor one religion over the other, or religion over non –religion. They want to make it simple, nativity scene should not be paid for and operated by city government, this shows favoritism. What will people who are looking at this take from it? Those who see it as part of framework, or those that see it as offending beliefs. Does it look like that sign has a favored positio

Front 45

Lynch Donelly
Christmas Scene

Back 45

, the Court held that notwithstanding the religious significance of the crèche, the city had not violated the Establishment Clause. The Court found that the display, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes

Front 46

Reynolds v. Us

Back 46

bigamy a no no

Front 47

Reynolds v. US

Back 47

In early years the US wasn’t that friendly to freedom of religion laws. To make a strong secular argument would be extraordinarly difficult.

Front 48

Wiconsin v. Yoder

Back 48

Three Amish families sued the state of Wisconsin over its requirement that children be enrolled in school until the age of sixteen.

Front 49

Wiconsin v. Yoder
upheld bc

Back 49

The Amish have a legitimate reason for removing their children from school prior to their attending high school. The qualities emphasized higher education (self-distinction, competitiveness, scientific accomplishment, etc.) are contrary to Amish values.

Front 50

Employment Division v. Oregon
facts

Back 50

Two Native Americans were fired from their jobs because they took peyote for sacramental purposes.

Front 51

Employment division ruling

Back 51

The Oregon law is not specifically directed at the Native Americans’ religious practice and is constitutional when applied to other citizens. “It is a permissible reading of the [free exercise clause]...to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended

Front 52

Freedom of Religion Restoration act

Back 52

The key case was Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court upheld the state of Oregon's refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive after using peyote in a religious ceremony.

In response, both liberal (like the ACLU) and conservative groups (like the Traditional Values Coalition) joined forces to support RFRA, which would reinstate the Sherbert Test, overturning laws if "religious exercise is substantially burdened" by them, unless the law is the "least restrictive means" of furthering a compelling state interest.

Front 53

Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal

Back 53

The court says that supposing there might be a downside to allowing it is not the same as proving, and a less restrictive way would be for instance to have a special licenses to bring it in by which the church accounts for quantity and use. Less restrictive way to allow use within church and gov’t regulation.

Front 54

Plessy v. Ferguson

Back 54

The court gets one of the first changes to interpret = protection. If you argue you have rights to = protection under the law, the court then has to decide what = protection means. At this point in history, the court decides separate but = is = protection. Support that interpretation of the = protection clause. As long as its of relatively = terms, that’s acceptable within = protection clause.

Front 55

Brown v. Board

Back 55

Brown says separate is the stigma. White folks making laws dividing the people. The majority is making rules that stigmatize the minority. Beforehand the verdict was never challenged. This is the case that challenged.
Nothing changed immediately.

Front 56

Cooper v. aaron

Back 56

The court for a few times in history is facing an all out backlash from many states in which leg and gov are refusing to fulfill SC opinion. They say you have to, this is the law of the land, we interpret and we expect it to be fulfilled. Give district courts oversight as to what school district do. Leads to group of cases which we’ll talk about next week.