CL M3A1

THE FIRST AMENDMENT PART I Constitutional Law

1st Amendment

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of Religion

 The first right set forth in the Bill of Rights.

 It forbids government constraint on people’s choices of beliefs

 An important legal issue is to keep church and state separate.

Establishment Clause

 “Congress shall make no law respecting an establishment of religion.”

 The government cannot show preference to any particular religion.

Everson v. Board of Education (1947)

 Facts: After repealing a former ban, a New Jersey law authorized payment by local school boards of the costs of transportation to and from schools – including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion through the mechanism of reimbursing parents and students for costs incurred as a result of attending religious schools violated both the New Jersey state constitution and the First Amendment.

 Issues: Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment?

 Holding: No.

 Rationale

How to Challenge the Establishment Clause?

 Must meet three standards:

1. Have a primary secular purpose

2. Have a principle effect that neither advances nor inhibits religion and

3. Not generate excessive entanglement between government and religion

Free Exercise Clause

 “Congress shall make no law…prohibiting the free exercise [of religion]”

 It involves both the freedom to believe and the freedom to act.

 Courts have had to balance the requirements of the free exercise clause

Wooley v. Maynard , 430 U.S. 705 (1977)

 Facts: New Hampshire statutes require that noncommercial motor vehicles bear license plates embossed with the state motto. The Maynards, Jehovah's Witnesses, viewed the motto as repugnant to their moral, religious, and political beliefs, and for this reason they covered up the motto on the license plates. On November 27, 1974, Maynard was issued a citation.

 Issues: Can the state constitutionally require citizens to display the state motto upon their vehicle license plates?

 Holding: No.

 Rationale: Forcing an individual, as part of his daily life -- indeed, constantly while his automobile is in public view -- to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, invades the sphere of intellect and spirit which it is the purpose of the First Amendment.

 Dissent

Freedom of Speech

 The liberty to speak openly without fear of government restraint.

 Closely linked to the freedom of the press

 Commonly called the freedom of expression.

Freedom of Speech Legal Standards

 Strict Scrutiny

 The state must establish that it has a compelling government interest that justifies the law in question.

 The law must be narrowly tailored to fit that interest.

Restrictions on Freedom of Speech

 Constitutional rights are NOT absolute.

 There are reasonable limits which are placed on where things can be said and on what can be said.

Schenck v. United States (1919)

 Facts: Members of the Socialist Party of Philadelphia authorized and oversaw the printing and mailing of 15k fliers to men encouraging resistance to the draft.

 Issue: Should the defendants be prosecuted for creating a clear and present danger that they will bring about substantive evils?

 Holding: Yes.

 Rationale: Times of war call for greater restrictions on free speech because of the increased dangers.