WTP Unit 5 Q1 and Q2

Question 1

Cases That Have Redefined 1st Amendment Speech Rights:

• Schenck v. United States (1919): The case established the “clear and present danger” test to determine what type of speech doesn’t pass that test

• Brandenburg v. Ohio( 1969): Refines the “clear and present danger” test, introduces the imminent lawless action standard which protects speech unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

• Texas v. Johnson (1989): This case ruled that burning the American flag as an act of protest is protected speech under the First Amendment, highlighting the broad scope of expressive conduct. 

Founders Intent of Free Speech:

Federalist 10- Emphasizes the importance of a system that balances interests through expression and states that it is essential to debate and preventing factions.

Federalist No. 84- addresses the need for a Bill of Rights, including protections for free speech and the press. Hamilton argues that the Constitution itself is a bill of rights, but he acknowledges the importance of explicitly enumerating certain rights to prevent any potential abuse of power by the government

Title VI in Education

• Requires that students of all races, colors and national origins have equal access to general education interventions and to a timely referral for evaluation on disability and special education and/or related aid organizations under the Individuals with Disabilities Act or Section 504 of Rehabilitation act of 1973
  
  

Warren Court Examples of 1st Amendment Speech Expansion: 

• Engle v. Vitale (1962): The Warren Court ruled that mandatory prayer in public schools violated the First Amendment's Establishment Clause. This decision reinforced the separation of church and state and underscored the importance of religious freedom.

Stuff on Issues and Controversies: 

Should states adopt strong religious freedom laws?

Does requiring public school students to wear uniforms violate their right to self-expression?

Does religion have any place in public schools?

Should there be a strict separation of church and state in the United States?

• Last 10 years

1. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”* Do you agree or disagree with Justice Brennan’s view of freedom of expression? Why? 

• Schenck v. United States

  • Justice Holmes set the principle of “The Clear and Present Danger” test which means free speech can be limited if it causes and clear and present danger

  • "The question in every case is 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."

• Brandenburg v. Ohio

  • Brandenburg was arrested for advocating for violence, but it was overturned 

  • Set the “imminent lawless action" standard which replaced the clear and present danger test

    • It can only be restricted if it is directed at inciting lawless action and it is likely that that action will occur

• Texas v. Johnson

  • Dealing with the burning of the American flag, the Supreme Court protected it as a form of symbolic speech (expressive conduct)

  • Justice Brennan was in the majority opinion and gave the quote in the question

• New York Times v. Sullivan

  • Created a high standard for public officials to claim defamation

  • Reporters cannot be punished for publishing false information unless it is proved that they meant actual malice and knew that the information was incorrect

• Chaplinsky v. New Hampshire

  • Established the “fighting words” doctrine

  • The Court held that "fighting words," are not protected by the First Amendment

  • "Fighting words" are defined as words that by their very utterance inflict injury or tend to incite an immediate breach of the peace

• Snyder v. Phelps

  • New York Times states: “The goals of American law are to render Americans both free and safe but not necessarily comfortable”

  • “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. But under our Constitution, we cannot react to that pain by punishing the speaker."

— Chief Justice Roberts

• Protesting outside of a funeral, the family got paid due to suffering, The Supreme Court overturned saying that the protester was doing so legally even if the message was hurtful

• Ensures 1st amendment protections even in emotionally charged situations(Fed 1)

• Terminiello v. Chicago

  • The Court ruled that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are or even stirs people to anger.”

• Watts v. United States

  • Looked at what “true threats” are and identified that one cannot be punished for threatening someone if it is hyperbolic

  • Watts made a joke about killing LBJ and was arrested

  • Due to context, they identified that he had no true intent to commit violence

○ To what extent, if any, should public universities be able to prohibit expression on campus that may be considered harmful to other groups? 

• University of California, Berkeley: In 2017, the university canceled a speech by conservative commentator Milo Yiannopoulos due to violent protests and safety concerns. This sparked a national debate about free speech on campus

• University of Missouri: In 2015, the university faced backlash for restricting protests to a "free speech zone" on campus, which students argued limited their ability to express their views

• University of Chicago: In 2016, the university reaffirmed its commitment to free speech by stating that it does not support trigger warnings or safe spaces, which led to both praise and criticism from students and faculty.

• UPenn: In 2024, a series of incidents regarding the Israel-Palestine conflict boiled over resulting in an Anti-Israel encampment on the UPenn campus. Israeli students felt unsafe on campus. UPenn announced they were making an Office of Religious and Ethnic Inclusion to deal with anti-semitism and islamophobia.

• Limits Public Universities can put on Speech Rights:

  • WVU: professors and faculty don’t lose speech rights when they step into an educational environment however free speech and expression is not allowed to be used in a way that interferes with the school’s educational mission

• Private Universities: speech rights of public universities don’t fall under 1st amendment as they are not government institutions and they can therefore have more robust or more strict speech rights on campus depending on the university’s choice.

• Exceptions to free speech: (apply to everyone)

  • Incitement to violence

  • True threat

  • Harassment

  • Obscenity

• Creating an inclusive environment

  • Hate speech

  • Misgendering or deadnaming

• These have to avoid being too broad or vague

• Campus codes of conduct also regulate speech

• Overreach can cause the “Chilling Effect” - students self-censoring 

• Free Speech Movement at UC Berkeley (1964): Berkeley was the hotspot for protests by the Students for a Democratic Society

• Brandeis University (historically Jewish institution): A pro-Palestinian student group was barred because of statements made by its national chapter in support of the terrorist group Hamas.

• Tinker v. Des Moines

  •  Students wore black arm bands to school in protest of the Vietnam War, the school suspended them

  • Decided that the armbands were symbolic speech that was protected, even though they were in a school

  • “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” -Justice Abe Fortas

  • Established the “substantial disruption" test

    • Materially and substantially disrupts the operation of the school

    • Or infringes on the rights of others

• Bethel School District v. Fraser

  • The Court held that schools have the authority to prohibit lewd, vulgar, or indecent speech that is inconsistent with the school’s educational mission

  • Different from Tinker because it only protects peaceful political expression

  • “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior” -Warren Burger

• Hazelwood School District v. Kuhlmeier

  • Said that administrators of public schools have the right to limit speech in school-sponsored expressive activities (newspaper)

  • Because it is not a public forum and is used as an educational experience

• Cohen v. California

  • Ruled that offensive language alone is not sufficient grounds for government regulations

  • Wore a shirt saying F the Draft into a courtroom

  • Used the “clear and present danger” test to overturn the conviction

• Cooper Union College 

  • Jewish students were housed in the library while pro-Palestine protesters banged on the doors (raises a concern under Title VI)

• Cornell University: 

  • A student was arrested for publishing threats to the school’s Jewish community

• Keyishian v. Board of Regents (1967):

  • Feinburg Laws (New York): an attempt to remove communist supporters from public employment and specifically education

  • Said that these laws were unconstitutional because they were too broad and caused a chilling effect because people were not aware of what was allowed and what wasn’t

• Healy v. James (1972):

  • The First Amendment guarantees the right to form organizations and express their views

  • Stated that public universities are not exempt from respecting students' First Amendment rights. 

  • The First Amendment is not a guarantee of access to government facilities or instrumentalities, but a guarantee of the right of free expression on the part of those who seek to disseminate their views."

      -  Justice White, the majority opinion

• Papish v. Board of Curators of the University of Missouri (1973):

  • Decided that universities cannot punish/expel students for publishing offensive or obscene material as long as it does not disrupt the educational section

  • "The mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of 'conventions of decency.'"

             - Justice Brennan, majority opinion

• Island Trees School District v. Pico (1982):

  • Centered on a dispute over the removal of certain books from a school library by the local school board, arguing they were "anti-American" and "immoral". The Supreme Court ruled that the First Amendment limits the power of school boards to remove books from libraries, emphasizing that students have the right to receive information and ideas. This case reinforced the principle that the government should not impose an orthodox set of beliefs, safeguarding freedom of speech and thought within educational settings.

•   

○ Have recent U.S. Supreme Court decisions upholding the Framers’ commitment to freedom of speech? Why or why not?

• Engle v. Vitale (1962): The Warren Court ruled that mandatory prayer in public schools violated the First Amendment's Establishment Clause. This decision reinforced the separation of church and state and underscored the importance of religious freedom.

• Minnesota Voters Alliance v. Mansky (2018)

  • The Court invalidated a Minnesota law that prohibited voters from wearing political apparel at polling places, finding the ban overly broad and a violation of free speech rights. 

• 303 Creative LLC v. Elenis (2023)

  • A website designer challenged Colorado’s anti-discrimination law, arguing it compelled her to create messages endorsing same-sex marriage, violating her First Amendment rights.

  • The Court sided with the designer, holding that compelling her to create custom websites with messages she did not support violated her free speech rights.

  • The case involved artistic expression and the extent to which creative work constitutes symbolic speech.

• NetChoice, LLC v. Paxton (2024)

Question 2

• Warren court

  • Public spaces need to be neutral

• Early 90s

  • If a law applies nuetrally, you can;t argue religious freedom

- Religious freedom restoration act:

- Roberts court

- More religion in public spaces

2. “These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. … Yet we have long said that ‘there is room for play in the joints’ between them.”* What are some ways the First Amendment’s religion clauses have been in tension with one another?

• Wisconsin v. Yoder (1972)

  • Amish parents refused to send their children to high school due to their religious beliefs, conflicting with Wisconsin's compulsory education law. The Supreme Court ruled in favor of the parents, emphasizing that the state's interest in education did not outweigh the parents' right to free exercise of religion. This case highlights the tension between ensuring educational requirements and respecting religious freedoms but also may lean to favoring a certain religion by making exceptions for them but not for others.

• Employment Division of Oregon v. Smith (1990)

  • Two Native American Church members who were fired for using peyote in a religious ceremony and then denied unemployment benefits. The Supreme Court ruled that neutral, generally applicable laws do not violate the Free Exercise Clause, even if they incidentally burden religious practices. This decision established that the government is not required to make exceptions for religious practices when enforcing such laws.

• Everson v. Board of Education (1947)

  • Addressed whether a New Jersey law reimbursing parents for transportation costs to parochial schools violated the Establishment Clause. The Supreme Court ruled that the law did not violate the Establishment Clause, as the reimbursements were considered a public welfare service and not direct support of religion. This case was the first to apply the Establishment Clause to state law through the Fourteenth Amendment.

• Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

  • Dealt with a city's ordinances that banned animal sacrifice, targeting the Santeria religion. The Supreme Court ruled that these ordinances violated the Free Exercise Clause because they were neither neutral nor generally applicable, and they specifically targeted religious practices. This case reinforced that laws infringing on religious practices must be justified by a compelling government interest and be narrowly tailored to achieve that interest.

• Trinity Lutheran Church of Colombia v. Comer

  • The Supreme Court struck down state laws that keep only religious institutions that otherwise qualify for government aid from getting it

• Engel v. Vitale

  • The Supreme Court ruled that state officials cannot compose official state prayers and authorize public schools to have their students recite them even if the prayer is “denominationally neutral” and students could opt out

• Espinoza v. Montana Department of Revenue

  • Court held that using state scholarship funds to support students in religious schools didn't violate the Establishment Clause but discriminating against schools based on their religious status violates the free exercise clause

 ○ In your opinion, have recent Supreme Court interpretations of the Establishment Clause strengthened or weakened the protection of religious liberty? Explain.

• Town of Greece v. Galloway (2014)

  •  a landmark U.S. Supreme Court case that addressed the constitutionality of legislative prayer under the First Amendment's Establishment Clause.

• Kennedy v. Bremerton School District (2022)

○ Should the federal or state governments implement additional laws offering more robust protections for religious practice? Why or why not?

Establishment Clause: "Congress shall make no law respecting an establishment of religion." This clause prohibits the government from establishing an official religion or favoring one religion over others. It ensures the separation of church and state, meaning the government cannot endorse, support, or become entangled with religious activities or institutions.

-Ryan Walters’ Plan:  Mandating that a bible be put in every classroom (Public schools are govt. Buildings, so no religious text should be mandated to be included unless all of them are included)

-Internation Religious Freedom Report: according to the pew research center, governments around the world are imposing restrictions on some religious practices while simultaneously benefiting others.

-Interpretations of establishment clause

1. Broad interpretation: First Amendment prevents the government from providing any aid to any religion, no tax money can be used to support any religious activity, practice, or institution, but government may give religious groups the same services that everyone else receives and may provide assistance that makes it easier for people to exercise their religion

2. Narrow interpretation: First Amendment does not prohibit government from supporting religion as long as it does so impartially 

   1. George Washington, Benjamin Franklin, and other founders had this interpretation

3. Literal interpretation: First Amendment prohibits only the establishment of an official government religion so the government can particpate in particular religous practices (ex: Christmas celebrations)

4. Strict interpretation: First Amendment prohibits the establishment of an official government religion so there should be a strict separation of church and state

   1. James Madison and Thomas Jefferson has this interpretation

Free Exercise Clause: The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest.

-Southern Baptist Church - homophobia via exercise of religion

-Masterpiece Cake Shop v. Colorado Civil Rights Commission (2018): baker refused to bake a cake for same-sex couple’s wedding as it violated his religious beliefs, court ruled in bakers favor stating the civil rights commission showed hostility to his religious beliefs.

-Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012): Supreme Court upholds that religious organizations can hire and fire misters reinforcing exceptions to employment discrimination laws under religious pretenses.

-Elane Photography v. Willock (2014): Elaine and Jonathan Huguenin refused to photograph a same-sex commitment ceremony, citing their religious beliefs that marriage is between a man and a woman. The New Mexico Human Rights Commission, two state courts, and the New Mexico Supreme Court ruled against them. A justice noted that violating their beliefs was "the price of citizenship." In 2014, the U.S. Supreme Court declined to review their case.

-Reynolds v. United States (1879): Reynolds was charged with bigamy but he argued his religion required him to practice polygamy so the law (Morrill Anti-Bigamy Act) violated his First Amendment right to free exercise of religion. The Court ruled that while the First Amendment protects the right to hold any religious belief, it does not protect the right to engage in any religious activity that is deemed criminal by law.

-Roman Catholic Diocese of Brooklyn v. Cuomo (2020): Addressed New York Governor Andrew Cuomo's executive order restricting attendance at religious services during the COVID-19 pandemic. The Court found that the restrictions violated the Free Exercise Clause of the First Amendment by treating religious entities more harshly than comparable secular facilities. As a result, the Court granted a preliminary injunction, blocking the enforcement of the restrictions.

However, in 2023, the U.S. Supreme Court ruled in 303 Creative v. Elenis, another case involving the refusal to create content for same-sex marriages due to religious beliefs. The Court upheld the free speech rights of individuals to express messages consistent with their beliefs, marking a significant victory for religious liberty and freedom of expression.

This newer ruling contrasts with the earlier decision in the Huguenins' case and highlights the evolving legal interpretations of the First Amendment.

History of religious freedom

• Colonial days

  • Each state had its own established church (ex: Church of England in Virginia) but there was a concern about creating a national church because of different religions in various region which would probably lead to civil war

  • Every state had a free exercise clause but not an establishment clause

• George Washington’s “Letter to the Society of Quakers”

  • Washington celebrates the Quakers’ contributions as citizens 

  • “Government being, among other purposes, instituted to protect the Person's and Consciences of men from oppression, it certainly is the duty of Rulers, not only to abstain from it themselves but according to their Stations, to prevent it in others” ← the government was created to protect citizens from oppression so leaders must not oppress and rather should prevent oppression 

  • “Laws must always be as extensively accommodated to them, as a due regard to the Protection and essential Interests of the Nation may Justify, and permit” ← Washington wishes laws will always be accommodating to religious differences and beliefs

• George Washington's “Letter to the Hebrew Congregation in Newport, Rhode Island”

  • Washington discusses how the US commits to the principle of religious tolerance and freedom of conscience

• Federalist No. 37 by James Madison discusses the difficulties the Constitutional Convention faced in balancing the various interests and opinions. It highlights the importance of creating a government that could manage diverse views, including religious ones.

• Reynolds v United States

  • The Supreme Court upheld the federal ban on polygamy in this landmark case, ruling that religious beliefs are not a defense against laws prohibiting practices like polygamy. The Court reasoned that while religious belief is protected under the First Amendment, actions in violation of the law are not.

Question Ideas:

• How severe of a law needs to be broken by a religious group before the government steps in?

• Does there need to be a set standard or look at each case individually?

  • Wisconsin v. Yoder

  • Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

  • Reynolds v. United States

  • Oregon v. Smith