First Amendment

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Five freedoms

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Religion, Speech, Press, Assembly, Petition

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How to determine if expressive conduct is speech?

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(1) Was there an intent to convey a particularized message?
(2) Was it a message that would reasonably be understood?

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Hierarchy of speech protection

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Political --> Commercial --> Sexual

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Basic rule of content discrimination

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Content-based: subject to strict scrutiny
Content-neutral: subject to intermediate scrutiny
Note: viewpoint discrimination is an egregious form of content discrimination

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Overbreadth definition (source)

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A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama

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Vagueness definition

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if persons of “common intelligence must necessarily guess at its meaning and differ as to its application.”

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Dual nature of free exercise clause

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Freedom to belief and freedom to act –

Clause embraces two concepts, - freedom to believe and freedom to act. Court has said that the “first is absolute but, in the nature of things, the second cannot be.”

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Rehnquist view of establishment clause

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“designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion.”

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To consider when analyzing First A prob

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Categorization: does speech fall into an unprotected category
Context: where does it take place
Content: does law discrim based on content or viewpoint

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Five doctrines promoting free speech

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1. Marketplace of ideas: advancing knowledge and truth in the marketplace of ideas
2. Self-governance theory: free speech facilitates representative democracy and self-gov (serves purposes: participation, pursuit of political truth, majority rule, restrain tyranny, promotes political stability (safety valve))
3. Liberty theory: promoting individual autonomy; individual fulfillment
4. Counter speech doctrine: remedy to falsehood and fallacies is more speech, not less
5. Safety valve theory: breeds repression, fear, hate, leads to unstable gov

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10 kinds of unprotected speech

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perjury, libel, blackmail, extortion, true threats, fighting words, obscenity, child porn, incitement to imminent lawless action, false advertising

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bad tendency test

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“It is true that disapproval of war and the advocacy of peace are not crimes under the Espionage Act; but the question here… is whether the natural and probable tendency and effect of the words … are such as are calculated to produce the result condemned by the statute”

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clear and present danger test

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followed bad tendency, from Schenck case: whether words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has the right to prevent; the harm has to be identifiable and it has to be close at hand (question of proximity and degree)

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Brandeis and Holmes

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Dissented in Abrams and Gitlow arguing: "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

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Tests applied Prior to Brandenburg

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1. Bad Tendency: whether the natural and probable tendency and effect of the words are such as are calculated to produce the result condemned by the statute
2. Clear and Present Danger (Schenck): whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent

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Brandenburg Test

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Imminent lawless action:
1. Whether the speaker intended to incite violence?
2. The speech was likely to produce unlawful action
3. The risk of unlawful action was imminent and
4. Unlawful action was likely

Then Hess and Claiborne addon: must be likely to incite such action with close temporal proximity AND incitement must be definitive rather than vague

CANNOT PUNISH MERE ADVOCACY

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Examples of Brandenburg applid

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Hess: "we'll take the fucking street later" NOT incitement because it was mere advocacy of illegal action at some indefinite time in the future
Claiborne Hardware: "boycott violators will be disciplined by their own people" NOT incitement because mere advocacy and violent action occurred months later

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Scope of Brandenburg (Hustler)

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Hustler orgasm article not incitement because it did not advocate and talked about dangers; focus instead is on wheter the speaker provided "material support" to accomplish crimes (i.e. yelling "fuck the police, where it caused actual riot)

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Chaplinsky case (facts and test)

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Jehovah's witness attracted crowd, police escorted him away, called the City Marshall a "damned fascist" etc
RULE: fighting words were not protected; fighting words means those words which by their very utterance inflict injury OR those which tend to incite an immediate breach of peace (under Cohen, must be directed at hearer); later cases have focused soley on "breach of peace" prong
Still good law, lower courts use it even though SCT has not upheld a conviction on basis of fighting words since Chap.

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Cohen case

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Added to Chap that fighting words includes only words directed to the person of the hearer, not to the world in general; would a reasonable person consider it a "direct personal insult"!?
Also makes clear that profanity is at least sometimes protected speech

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Protection of profanity under the First A

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The First A protects profanity in the public sphere unless it crosses the line into true threats, fighting words, or incitement to imminent lawless action

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Gooding case

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held that statute prohibiting "opprobrius words or abusive language" was overly broad and impermissively vague

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Houston v. Hill case

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Held that the First A protects a significant amount of verbal criticism and challenge directed at police officers; police officers are held to a higher standard than "reasonable person"; it's part of their job to be verbally attacked by citizens

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RAV v. City of St. Paul

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Juvenile burned cross in someone's yard; convicted under statute that prohibited symbols etc that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender"
Court found that this was impermissible content discrimination

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Purtell

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Held that tombstones describing neighbors death were not fighting words since they did not cause a breach of peace despite being out for a long time and because the tombstones prob weren't specifically addressed to anyone

Important because noted that modern case law has done away with "inflict injury" prong of Chap.

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Heckler's Veto and Feiner

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Focus is the listener's reaction; court upheld conviction of a veteran who spoke to a crowd of mostly blacks and rising up to get equal rights, there was some shoving; Court upheld his conviction because the issue was not the content of the message but the reaction which it provoked; Ct said that when the speaker passes from arg/persuasion and into the realm of inciting a riot, the cops have a right to prevent a breach of the peace before it happens

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Forsyth Case

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held that "speech cannot be financially burdened, any more than it can be punished or banned simply because it might offend a hostile mob"

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Watts Case

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Speaker said that if he were drafted first person he shot would be LBJ
Ct held that kind of "political hyperbole engaged in here" was not such a true threat
Considered: 1. Context of statement (i.e. listeners laughed), 2. Conditional nature of threat, 3. Made during political debate

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VA v. Black Case

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Cross burning case
True threats definition: where speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individs; speaker need not carry out the actual threat

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Intent in True Threat Cases

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Note: some courts require subjective intent, others require objective intent (then these courts disagree whether to look at reasonable speaker or reasonable recipient (target))
Majority rule: vast maj don't require D to actually intend to carry out the threat; test is whether D intended his words/conduct to be understood as true threat
For all objective tests (reasonable speaker, etc) the D must have knowingly uttered the statement

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Dinwidde Factors

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1. The reaction of the recipient of the threat and other listeners
2. Whether the threat was conditional
3. Whether the threat was communicated directly to its victim
4. Whether the maker of the threat had made similar statements to the victim in the past
5. Whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence
NOTE: this is the test almost always used in threat cases involving students

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Intimidation

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“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

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Hate Speech

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Hate speech is protected speech unless it constitutes Fighting Words, Incitement to Imminent Lawless Action, or a True Threat

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Roth test for obscenity

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whether average person applying contemporary community standards, the dominant them of the material taken as a whole appeals to the prurient intest

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Stanley v. GA

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case where the Ct established the home as a safe harbor for possession of obscene materials: person's right to privacy outweighed the state's interest in controlling the distribution of obscene material

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Miller Test

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Threshhold: is this in the range of potentially obscene materials (possibly because described as patently offensive by applicable state law)
1. Prurient interest: whether the avg person applying contemporary community standards would find that the work, taken as a whole, appealed to the prurient interest (unwholesome sexual interest); LOCAL not national focus; evidence of community standards may include the availability of the same or comparable materials in the area, anything that indicates a reasonable acceptance in the comm
2. Patently Offensive: whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined in the law
3. SLAPS whether the work taken as a whole lacks serious literary, artistic, political, or scientific value (see other card for SLAPS details)

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SLAPS baby

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Pope: not whether an ordinary comm. member would find serious value in material, but a reasonable person; judges can exercise own independent review of this!
Expert witnesses: not required, but necessary to prove your case usually
Tipp-It tests:
1. 4 corners: analyze design, color, space composition,

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Child Pornography Rules (diff with Miller)

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Child pornography is outside the protection of the First A; illegal to produce, distribute, and possess
Need not look at material as a whole, does not have to predominantly appeal to the prurient interest, conduct portrayed does not have to be done in a patently offensive manner

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Ashcroft v. Free Speech Coalition

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Invalidated law that prohibited virtual child pornography; even though such speech could lead to the abuse of children, such a link is contingent and indirect

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Sexually explicit but non-obscene expression

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This is material that falls short of obscenity but which the court believes should be regulated

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Erznoznik

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City ordinance prohibited films with nudity on drive in screens; court struck down ordinance because it was content discrimination; since this was public viewers could avert their eyes, the government could not restrict speech this way; also overbroad (baby's bottom arg)

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Schad v. Mt. Ephram case (importance)

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Nude dancing, ordinance banned live entertainment; court struck down
Importance: Flat bans on speech are IMPERMISSIBLE! Can zone it, license it, regulate the content of the type of dancing, etc

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Rules for content based or content neutral

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content-based subject to strict scrutiny and content-neutral laws are subject to intermediate scrutiny
Test for content neutral: Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech.“

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Rule and case for whether a city has to perform its own studies before zoning speech

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Renton: The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”

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Timing of secondary effects discussion

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Circuit Court: Although the Supreme Court has not expressly decided the issue, the Renton standard suggests that pre-enactment evidence is necessary: an ordinance, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses" in enacting the ordinance.”
But other circuits disagree

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Complete prohibition of public nudity

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PAP's AM allows such a ban if justified by secondary effects doctrine

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Evidentiary Rule for Secondary Effects (Alameda)

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City shows that it relied on some evidence of secondary effects;

Adult business then must cast “direct doubt” on the evidence by disputing city’s findings or debunking the city’s evidence.

If done, then the burden shifts back to city to supplement the record with evidence justifying its ordinance

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Application of Secondary Effects to Political Speech (Case and Rule)

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Some lower courts have applied doctrine to signs in embassy areas (idea that it advances valid secondary effect of shielding diplomats/ international obligation)
Boos: O’Connor said law not justified by secondary effects because “listeners’ reaction to speech are not the type of ‘secondary effects’ we referred to in Renton and “the emotive impact of speech on its audience is not a ‘secondary effect.’”

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Common secondary effects

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Increased crime, prostitution, residential privacy, visual clutter, interference with ingress and egress, traffic congestion, noise, security problems, appearances of impropriety, employment discrimination, economic vitality in business districts, property values, preserving the educational appearance of a college, preventing blockbusting, loss of a profession’s integrity, identifying unfit judges, maintaining public order, equal employment opportunities, negative effects of gambling …

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Impact of Secondary Effects Doctrine

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Converts content-based laws into content-neutral (what Kennedy describes as legal “fiction.”)

Waters down level of judicial review in application of intermediate scrutiny

Lowers level of evidence necessary to support speech restrictions.

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Strict Scrutiny Rule generally and Intermediate Scrutiny Rule generally

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Strict: compelling gov interest, narrowly tailored
Intermediate: furthers an important government interest in a way that is substantially related to that interest.

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Flanigan's

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Circuit court case applying intermediate scrutiny to ordinance and invalidating it because the local studies by the county did not show any harmful effects; the county tried to show studies from other jx, but the ct rejected this

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Application of Sec Effects to Political Speech

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Suggestion in Boos that this is possible because Ct said that if they had justified ordinance because of congestion, visual clutter, or security of embassies, it might have been valid

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Broadcast indecency (case and rules)

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FCC v. Pacifica: Carlin's "Filthy words"
Ct held that although this would be protected in some contexts, it was not here because broadcast media is pervasive and uniquely accessible to children
Factors to consider for regulation: time of day, content of program (if it were Shakespeare, prob would be ok), composition of the audience, differences b/t radio, tv, etc

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Captive Audience doctrine

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The Gov (FCC) may rely on this doctrine when applied to the home: the 1st A does not permit the government to prohibit speech as intrusive unless the captive audience cannot avoid objectionable speech

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Indecency and Cable

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Laws regulating cable indecency analyzed under strict scrutiny; the law in US v. Playboy required cable operators to scramble sexually explicit program or to confine it to late night; the court held that because cable cos can block unwanted channels on house by house basis, this is a less restrictive alternative

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Indecency and the Interent

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Reno v. ACLU: Court held that the internet is not as invasive as tv or radio, and that accidental exposure to sexually explicit material is remote; statute failed to imposed Miller requirements
Internet is equivalent to print medium, and, therefore, subject to strict scrutiny

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Factors/Test for Defamation

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1. Id: whether the audience may reasonably id the P
2. Publication: disseminated to third party
3. Falsity: statements must be false (misquotes and rhetoric hyperbole usually ok)
4. Statements of fact: not opinions
5. Damages: injury
6. Fault:
Defamation of Public Figures: must prove actual malice (knowing falsity or reckless disregard)
Defamation of Private Person: negligence

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4 types of privacy invasions

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1. Invasion into the P's affairs (intentional, highly offensive to reasonable person)
2. Public disclosure of nonnewsworthy facts P would have preferred to keep secret (highly offensive, not of legit concern to public)
3. Publicity place P in false light (highly offensive to reasonable person and actor had knowledge or reckless disregard for falsity of the publicized matter

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IIED for public figure

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showing that publication includes a false statement of fact which was made with actual malice

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VA Pharmacy Bd v. VA Citizens Consumer Counsel

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Pure commercial speech is entitled to First A protection, but state may regulate commercial speech that is false or misleading or promotes an illegal product

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Fox Case

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when the pure speech and the commercial speech are inextricably intertwined, the court will apply strict scrutiny (good to argue if you are seller!)

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Attorney Advertising

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Truthful advertisements are protected
In person solicitations: not protected by First A because coercive
May restrict advertisements, letter solicitations for substantial state interests like protection of personal injury victims

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Standard of Scrutiny for COMMERCIAL SPEECH

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NB: the standard for non-commercial speech is strict scrutiny
Commercial speech: intermediate scrutiny (just as for Content-neutral regs)
Central Hudson Test:
1. Is speech entitled to First A protection? If it is not misleading and concerns lawful activity...
2. Is the asserted gov interest substantial?
3. Whether the regulation directly or materially advances the gov interest? (State has burden of showing this)
4. Whether the regulation is not more extensive than is necessary to serve that interest (NB: this is NOT least restrictive means test... Just has to be reasonable/narrowly tailored)

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Order of questions when analyzing First A issue

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(1) Determine if there is any “speech” involved (is it just conduct? Test: intent to convey particularized message AND would likely be understood by audience OR Obrien test if reg of speech and conduct)
(2) Categorical balancing (incitement, FW, obscenity, true threats, CP, libel, commercial speech, indecent speech) (unprotected categories)
*Does speech fall within an unprotected category
(3) Special settings?
Public student, public employee, inmate, member of military
Public forum doctrine
Special setting: particular communications media, campaign finance, government speech
(4) Traditional Content Discrimination/Viewpoint discrimination (content-based or content-neutral) (doesn't typically apply to special place)
Overbreadth, vagueness or prior restraint

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Rule for content based restrictions

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Test: whether the government has adopted the regulation of speech because of disagreement with the message it conveys
Strict scrutiny: narrowly tailored to a compelling government interest (often apply least restrictive means test)

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Content neutral test

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Intermediate scrutiny: advance a substantial government interest, be narrowly drawn, and provide ample alternative measures of communication

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How to determine whether speech is content based or content neutral

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Examine plain language of regulation to see if it confers benefits or imposes burden based on content of speech.
If yes, content-based.
If no, ask whether the law’s primary purpose is to regulate speech because of its message. (if so, still content-based)

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Symbolic speech rules

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(1) does conduct communicate a message? look at actor's intent
(2) if so, if law is content neutral, O'Brien test applies and if content based, strict scrutiny applies

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O'brien test

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The gov may regulate if:
1. The gov has the power to regulate in the field
2. The regulation advances a substantial or important government interest
3. The interest is unrelated to the suppression of free expression
4. The incidental restriction alleged First A freedoms is no greater than is essential to the furtherance of that interest

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Test for reasonable time, place, and manner restrictions:

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1. Justified without reference tot he content of the speech
2. Narrowly tailored to serve a significant gov interest
3. Leave open ample alternative channels for communication of the information

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Flagburning case (TX v. Johnson)

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Ct applied strict scrutiny (content based under third prong of OBrien bc preserving flag is related to suppression of free expression) and invalidated the law

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Hill v. Colorado

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upheld 8 feet floating buffer of person entering/exiting abortion clinic: considered to be quintessential application of content neutral principle
(1) Neutral because regulates tpm of speech
(2) not adopted because of disagreement with speech
(3) Justified by other interests (access and privacy) unrelated to ideas
Refused to accept distinction b/t protesting and conversational speech b/c the law regulated ALL protesting whether or not concerns abortion or supports/opposes abortion decision

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Threshhold Issue in Student Speech Cases

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First determine whether the kid is at school: look to things like school hours, whether it is a school sanctioned event, whether on school property, whether other students are around, whether teachers are there, etc

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Tinker (Test and Scope)

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Vietnam black arm bands
School officials may censor student expression only if it "materially disrupts class work or involves substantial disorder or invasion of the rights of others"
*Substantial disruption: must be a reasonable forecast of disruption
*Invades rights of others: never really defined, lower courts say basic rights against assault, defamation, etc and some courts say students' right to learn

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Books in Schools

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Where school removes books from the library the test is whether the school has denied the students their 1st A right because they intended to deny students access to idea with which the school disagreed
BUT if the decision was based on the book's pervasive vulgarity or educational suitability, no problem

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Fraser (Test and Scope)

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School can regulate student speech that is vulgar, lewd, or plainly offensive
*Morse said really only vulgar or lewd, but lower courts still may bar speech that is plainly offensive

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Hazlewood (Test and Scope)

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School officials may regulate school sponsored student speech if they have a legitimate pedagogical reason for doing so
*A ped reason could be ensuring that student speech not associate the school with any position other than neutrality on matters of political controversy
*Sounds a lot like rational basis

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Morse

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Bong hits for Jesus
Promoting drug exception: school can take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use

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Violent Student Expression as True Threat

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Dinwidde factors
1. Reaction of listeners
2. Threat was conditional
3. The threat was communicated directly to the recipient
4. Maker made similar statements in the past
5. Victim had reason to believe the make of the statement had a propensity to engage in violence

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Student speech off campus

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Klein (lower court) foudn that bird at rest was too attenuated to support his suspension in violation of school rule

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True threats and Tinker

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Is the Expression a True Threat?

If a true threat, it is unprotected speech. True threats are not protected by the First Amendment.

Even if the expression is not a true threat, can it be prohibited under the Tinker standard?

Ask: Would a reasonable person believe that an objective, reasonable recipient of the statement would interpret the language to constitute a threat?

Would a reasonable recipient interpret the material as a serious threat of harm?

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Public Employee Pickering/Connick/Garcetti Test

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Garcetti threshhold: when a public EE makes a statement pursuant to his official duties, the EE is not speaking as a citizen for 1st A purposes (not protected): look at core functions of EE's job, if the action is related to an essential function then no prot; does the speech owe its existence to a public EE's prof responsibilities (Callahan)? Can't focus on job description (Kennedy)
1. Is the speech about a matter of public concern?
*Public concern: relating to ay matter of political, social or other concern to community
*Private concerns: not public: inquiry ends here, court defers to gov personnel decision
2. If public, must engage in balancing of the EEs free speech/ commenting on public concern with government interest in efficiency
*Consider: Did it impair discipline or harmony, did it detrimentally impact close working relationships, did the speech arise out of an EM dispute, did it interfere with the normal operation of ER's business

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Chain of command rule

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The general principle is that if an employee goes outside the chain of command in speaking out at the workplace, it makes it less likely that the speech was made pursuant to official job duties.
See Thomas v. City of Blanchard, 548 U.S. 1317 (10th Cir. 2008)(“So too, when Mr. Thomas went beyond complaining to his supervisors and instead threatened to report to the OSBI, an agency outside his chain of command, his speech ceased to be merely 'pursuant to his official duties' and became the speech of a concerned citizen.”)

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Mt. Healthy defense

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Mt. Healthy v. Doyle (1977) --- teacher objects to dress code and is subject to discipline … but teacher had bad employment record (fought with other teachers, problem ee)

Mt. Healthy defense – if employer can show it would have made the same decision in spite of speech, no liability

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Government Speech Doctrine

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Government may selectively fund a program to encourage certain activities it believes to be in the public interest without at the same time funding an alternative program
“The First Amendment does not prohibit the government, itself, from speaking, nor require the government to speak. Similarly, the First Amendment does not preclude the government from exercising editorial discretion over its own medium of expression.”

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Public Forum Doctrine

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A doctrine which establishes that the level of free-speech protection on government-controlled property varies depending on the nature of that property.

Traditional public forum – public street or park; municipal auditorium

Designated public forum – places not traditionally open but designated by government for at least certain types of public use; --- university campuses, school board meeting rooms and

Nonpublic forums – school’s mailbox system; school hallways; city transit’s advertising scheme; sidewalk outside post office

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What is government speech?

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when "the government sets the overall message to be communicated and approves every word that is disseminated," it is government speech


(1) the central purpose of the program;
(2) the degree of editorial control exercised by the government or private entities over the content of the speech;
(3) the identity of the literal speaker;
(4) whether the government or the private entity bears the “ultimate responsibility for the content of the speech;

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Limits on gov speech?

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Establishment clause: one justice says hasn't exactly been worked out


“Respondent voices the legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain private speakers over others based on viewpoint.” (Pleasant Grove)

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Overbreadth Doctrine

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Laws that are worded in such a way that even protected expression is left vulnerable to punishment
Ex. Jews for Jesus: ban on all First A activity at LAX
Test: Invalidation will occur when the statute's overbreadth is substantial no only in an absolute sense but also relative to the statute's plainly legitimate sweep; substantial means there must be a realistic danger that the statute itself will significantly compromise recognized 1st A protections of parties not before the court
Test: . It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. On  the contrary, ... there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” (Vincent)

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Vagueness

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A law will be void on its face for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application

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Compelled speech doctrine

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The right not to speak

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Right to Anonymous Speech

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McIntyre: (Campaign leaflets must have name and address) Court invalidated the law and held that the decision to remain anonymous is an aspect of freedom of speech covered by the 1st. The court applied strict scrutiny since the law burdened core political speech

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Lemon Test

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1. Lemon test – Statute must have: (1) secular legislative purpose; (2) principal/primary effect must be one that neither advances nor inhibits religion; & (3) CAN’T foster excessive entanglement w/ religion
a. In 1997 SCOTUS folded entanglement prong into effects prong
b. Purpose prong – on a fundamental level, is there primarily a religious or a secular purpose for the law?
i. MANY cases decided on this point, & purposes can get creative (e.g. 5th Cir. upheld Texas moment of silence law)
c. Effects prong – Looks at BOTH primary effect of law & entanglement
i. Criteria: (1) Does gov’t aid result in gov’t indoctrination; (2) Are recipients of aid defined by reference to religion?; (3) Does aid create excessive gov’t entanglement

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Justice Black view on First A (also majority view)

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Voluntarism and Separatism: separation of Church and State

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Minority/ Rehnquist view

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“designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion.”

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History and Tradition Test

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2. History & Tradition test – Focuses on whether challenged action just a part of the unbroken history of religious influences in American public life
a. Use this test in religious acknowledgement cases
b. E.g. Marsh v. Chambers

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Engale v. Vitale

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21 word nondenominational prayer used in public schools; Violated EC even though denominationally neutral and voluntary

“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing official approved religion is plain,”

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Endorsement Test

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3. Endorsement Test – Does gov’t endorsement of religion create appearance of rel. b/t status as adherents & standing in political community?
a. Use this test when dealing w/ religious displays
b. 2 Components: (1) Subjective – WAS practice intended to endorse or disapprove of religion?; (2) Objective – Does practice actually convey the message that religion was endorsed or disapproved of (What would reasonable observer believe)?
c. 6th Cir. applies this as part of Lemon prong 2, but others apply it as an indep. test
d. E.g. Lynch v. Donnelly (O’Connor Concur); Allegheny County v. ACLU
Recap: mere gov acknowledgment of religion is ok

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Coercion Test

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4. Coercion – Does power & prestige of state behind practice have coercive effect?
a. Used almost universally in public school context
b. E.g. Kennedy’s Concur. in Allegheny County; Lee v. Weisman

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Marsh

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E. Marsh v. Chambers (1983) – UPHELD Neb. legislature’s practice of opening each day w/ a prayer by a chaplain paid by the state
1. 1st case since Lemon to NOT use the 3-pronged test (instead used history & tradition form of analysis)
2. Focused on fact that Neb. had been doing this for years, & compared it to practice in Congress since 1789 of having chaplain to open each day of prayer & opening cts w/ “God save the U.S. & this Honorable Court” (“unambiguous & unbroken history of more than 200 years”) – calls these displays “simply a tolerable acknowledgment of beliefs widely held among the people of this country”

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Free Exercise Clause

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The first freedoms interpretation, which holds that Congress may restrict religious activity only if it has a "compelling interest" in doing so. This means that Congress may not, for example, ban the hallucinatory drug peyote (used by some American Indian traditions) because it has no compelling interest. (Sherbert case, unable to get EM bc couldnt work on Sabbath, invalidated!); Strict scrutiny; Peyote case: peyote ban is fine because that is a legitimate law of general applicability

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Rules for Establishment Clause Test

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o Establishment clause
• Generally apply Lemon; but also advocate for history and tradition case if you’re the challenged; if you’re the challenger, then you’ll want to apply Lemon.
• If issue of a display, argue for endorsement test
• If issue of public prayer, argue for coercion test
• Need to look at what question says: if it says “please evaluate the claims,” just do that. If it says “defend the school,” might need to argue for adoption for a new test.