PSC 319 Midterm

Abrams v. US (1919) Impact

Abandoned the clear and present danger test, adopted the bad tendency test (

McCullen v. Coakley (2014) Impact

Added a criteria to the principle established in Hill, specifically that regulation of protest speech must be content neutral, specifically tailored, and least restrictive means, but also must serve a significant government interest.

Employment Division of Oregon v. Smith (1990) Impact

Affirmed that religious protection does not extend to illegal activities like peyote which are illegal across the board in a general, neutral law with government interest.

Cantwell v. Connecticut (1940) Impact

Affirmed the concept of protection of religious groups. Government cannot regulate specific religious action. Neutral laws are okay, the the specific law in this case was not up to that standard.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)

Allowing gay rights group to march significantly burdens expression of parade organizers.

Hurtado v. California (1884) (Effect)

Court doesn't completely rule out incorporation, but the portion of the 5th amendment that pertains to due process cannot be used to incorporate the entire Bill of Rights.

Near v. Minnesota (1931) Impact

Court established that prior restraint on a publication is a violation of the 1A.

Dennis v. US (1951) Impact

Court rejected the clear and present danger test. Justice Black dissented, claiming the Smith Act was prior censorship.

Brandenburg v. Ohio (1969) Impact

Created an additional test for determining the validity of limiting speech. Required 1.) speech directed at inciting or producing imminent lawless action an 2.) that speech being likely to produce or incite that action

Lynch v. Donnelly (1984)

Creche scenes okay if they are part of a whole display.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) Impact

Defined Smith as inapplicable in this instance. Protected a church's right to make its own decisions on its ministers

Sherbert v. Verner (1963) Impact

Developed the idea that religious regulation needs to be the least restrictive means and support legitimate government interest. Sherbert test.

Palko v. Connecticut (1937) (Effect)

Double jeopardy protection not incorporated to the states

Braunfeld v. Brown (1961)

Downfall of the valid secular policy test. Established that laws that burden religion must meet two criteria: they must have an important, neutral, secular end; must be the least restrictive means.

Slaughterhouse Cases (1873) (Effect)

Essentially gutted the privileges and immunities clause, prevented it from being incorporated into the states. Would eventually lead to the dispute in Hurtado.

Central Hudson (1980) Impact

Established a 4-point test for regulation of commercial speech: Is the expression protected by the First Amendment Speech must concern lawful activity, and not be misleading Is the asserted governmental interest substantial? Does the regulation directly avenge the governmental interest asserted? Is the regulation more extensive than necessary to serve that interest?

Schneck v. U.S. (1919) Impact

Established clear and present danger test. Established that the First Amendment does not protect speech that creates a clear and present danger of a significant evil that Congress has the power to prevent.

Town of Greece v. Galloway (2014) Impact

Established protection for legislative prayer, as the court decided regulating it would put them in a place of making decisions on religious speech.

Burwell v. Hobby Lobby Stores, Inc (2014) Impact

Established religious protection for the owners of private, for-profit corporations who hold religious objections to regulations.

U.S. v. Alvarez (2012) Impact

Established that lying (barring in court) is protected speech and cannot be restricted by federal law under the 1A.

Boy Scouts of America v. Dale (2000) Impact

Established that private groups have the right to expressive association, and can choose which groups of people to include and exclude, as protected under the 1A right to freedom of association.

Cohen v. California (1971) Impact

Established that profanity was protected speech on clothing, etc, so long as it wasn't directed at someone specifically. In doing this, the court protected elements of speech dealing with the emotive and the cognitive, or the emotional, and the expression of ideas.

Branzburg v. Hayes (1972) Impact

Established that reporters have no protection regarding concealing their sources if the sourcess partake in criminal activity

Tinker v. Des Moines (1969) Impact

Established that students still have rights to protected speech, barring the circumstance in which disruption to the school environment is created.

Wisconsin v. Mitchell (1993) Impact

Established that the 1A does not protect racially motivated acts of violence as any kind of speech.

Chaplinksy v. New Hampshire (1942) Impact

Established that the category of speech "fighting words" were not protected under the First Amendment, as the locality has an interest in limiting them due to moral impact and societal safety.

U.S. v. Miller (1931) Impact

Established the principle of right to bear arms being useful for military purposes (if a firearm has been modified to the point of no military value to the nation, it is not protected). Used collective approach.

Snyder v. Phelps (2011) Impact

Established the right of citizens to protest military funerals under the free speech clause, regardless of emotional distress caused by that action.

U.S. v. O'Brien (1968) Impact

Established the test for regulating symbolic speech that requires the regulation to be content neutral and to hold sufficient interest to the government as a result of the limitation.

First National Bank of Boston v. Bellotti (1978) Impact

Establishes broad protection for commercial speech, even though it is not pure speech. Additionally protects discussion of government affairs regardless of source.

Duncan v. Louisiana (1968)

Facts: Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was sentenced to 60 days in prison and fined $150. Duncan's request for a jury trial was denied. Issue: Was the State of Louisiana obligated to provide a trial by jury in criminal cases such as Duncan's? Analysis: Trial by jury is fundamental to the American scheme of justice. Conclusion: The state of Louisiana was obligated to provide a trial by jury.

Gitlow v. New York (1925)

Facts: Gitlow, a socialist, was arrested in 1919 for distributing a "Left Wing Manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under New York's Criminal Anarchy Law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action. Issue: Does the state criminal anarchy law violate the First Amendment right to free speech through the due process clause of the Fourteenth Amendment? Rule: Bad Tendency Test (Abrams) Analysis: Speech that advocates for the violent overthrow of the government constituted a valid application of the clear and present danger test. Also set the precedent for incorporating the Bill of Rights to the states. Conclusion: New York law constitutional

Abrams v. US (1919)

Facts: In 1918, the United States participated in a military operation on Russian soil against Germany after the Russian Revolution overthrew the tsarist regime. Russian immigrants in the US circulated literature calling for a general strike in ammunition plants to undermine the US war effort. The defendants were convicted for two leaflets thrown from a New York City window. One denounced the sending of American troops to Russia, and the second denounced the war and advocated for the cessation of the production of weapons to be used against "Workers Soviets of Russia". They were sentenced to 20 years in prison. Issue: Was Abrams' right to free speech violated when the government arrested him for distributing antiwar pamphlets? Analysis: The Court concluded that the actions taken to hamper the U.S. war effort violated the Espionage Act and were sufficient enough to satisfy the test established in Schneck. Conclusion: Conviction was upheld Dissent: Holmes argued that the 1A protects the right of citizens to dissent government viewpoints and actions. Also argued that the evidence used in conviction was not strong enough to satisfy the clear and present danger test.

Cohen v. California (1971)

Facts: A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "**** THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. Issue: Does the First Amendment protect a person's right to wear a political statement, that includes obscene language, on his clothing. Analysis: The Court reasoned that the expletive language on the jacket wasn't directed at someone specifically, and was unlikely to provoke large altercations, etc. Conclusion: California law unconstitutional

Edwards v. Aguillard (1987)

Facts: A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be addressed, evolution or creation, teachers were obligated to discuss the other as well. Issue: Did the Louisiana law, which mandated the teaching of "creation science" along with the theory of evolution, violate the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment? Analysis: Law failed all three prongs of Lemon 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." Conclusion: Louisiana law unconstitutional

Near v. Minnesota (1931)

Facts: A Minnesota law provided or the abatement, as a public nuisance, of a malicious, scandalous, and defamatory newspaper, magazine, or other periodical" A county attorney asked a state judge to issue a restraining order banning publication of the Saturday Press. In the attorney's view, the newspaper, partly owned by Near, violated the statute. The paper committed itself to uncovering corruption in Minneapolis, but the articles it published were colored by Near's racist and anti-Semitic attitudes. Issue: Is a statute authorizing the prior restraint of a newspaper consistent with the liberty of the freedom of the press? Analysis: The liberty o the press and of speech is within the liberty protected by due process clause of the 14A. States have right to enact laws to promote health, welfare of its people, but its power must be determined with regard to the particular subject of its exercise. The right to be free of prior restraint is not unlimited, but limitations are recognized only in exceptional cases. Conclusion: Statute unconstitutional

Lemon v. Kurtzman (1971)

Facts: A Pennsylvania law authorized Kurtzman, a superintendent to purchase secular educational services form nonpublic schools. He would use state taxes to reimburse nonpublic schools for expenses incurred for teachers' salaries, textbooks and instructional materials There were restrictions: only secular expenses could be paid, including secular books and teachers' salaries for the same courses taught in public schools. To receive payments schools had to keep separate records for secular and nonsecular expenses Issue: Does the reimbursing of nonpublic schools for teachers and secular education violate the establishment clause? Rule: Secular legislative purpose, primary effect, excessive government entanglement Analysis: The laws of Pennsylvania and Rhode Island meet the first step. Indeed, they are intended to enhance the quality of secular education in schools covered by compulsory attendance laws We need not consider the primary affect of these laws as the cumulative impact of the entire relationship arising under the statutes in each state involves excessive entanglement between government and religion. Conclusion: The reimbursement violates the establishment clause?

Tinker v. Des Moines (1969)

Facts: A group of adults and secondary students wanted to demonstrate opposition to the Vietnam War by wearing black armbands to school every day between Dec 16 and January 1. The students who participated were suspended. Issue: Is the wearing of armbands by public school students during the school day a form of protected speech under the First Amendment? Rule: If expression, must be sufficiently important government interest If pure speech, must be content neutral Analysis: The problem in this case lies in the area where students in the exercise of their speech rights collide with school rules. While the school officials sought to punish silent, passive, expression, there is no indication that the work of the schools or any class was disrupted. Conclusion: Wearing of armbands is protected speech

D.C. v. Heller (2008)

Facts: A licensed special police officer in DC (Heller) was authorized to carry a gun in federal office buildings, but was not allowed to have one in his home. Heller had lived in Southeast DC near the Kentucky Courts public hosing complex since 1970, and had seen the neighborhood transform into a more dangerous area DC had a handgun ban an required that lawfully owned rifles and shotguns be kept unloaded and disassembled or bound by a trigger lock Issue: Does banning handguns and carrying a pistol with a license violate the 2nd amendment Rule: Individual Approach Analysis: Handguns are "arms" for purposes of the 2A The 2A protects the individual right to bear arms. The militia clause neither limits nor increases this right. This right, however, is not unlimited. Conclusion: Provision of the Firearms Control Regulations Act of 1975 are unconstitutional.

Central Hudson v. PSC of New York (1980)

Facts: After the energy shortage of 1973, the NY PSC ordered all public utility companies to stop al advertising that promote the use of electricity. Three years after the shortage ceased, the commission requested comments on the ban. Central Hudson opposed the ban on First Amendment grounds, but the commission extended the ban to all advertising Issue: Does the PSC's regulation on advertising violate the First and Fourteenth amendments because it completely bans promotional advertising by an electrical utility Rule: Commercial Speech Analysis: The commission offers two state interests as justification for the ban - energy conservation and that rates be fair an efficient. Both are substantial interests In terms of the advertising ban, the arguments for the interest do not justify the restriction on protected speech, Such conditional and remote eventualities put forth by the state simply cannot justify silencing the advertising Conclusion: NY statute unconstitutional

American Legion v. American Humanist Ass'n (2019)

Facts: As part of a memorial park honoring veterans is a 40-foot tall cross. Construction on the cross began in 1918, and it was widely described using Christian terms and celebrated in Christian services. In 1961, Maryland National Capitol Park and Planning Commission acquired the cross and the land, as well as the responsibility to maintain, repair and otherwise care for the cross and spent over $117,000 Issue:Does the expenditure of funds to maintain the cross amount to the government's excessive entanglement with religion? Analysis: The cross came into widespread use as a symbol of christianity by the fourth century and it retains that meaning today. But there are many contexts in which the symbol has also taken a secular meaning The Court has frequently ignored or not applied the Lemon test The Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations But what mattered was that the town's practice "fit within the tradition long followed in Congress and the state legislatures." Conclusion: The cross is constitutional

Barron v. Baltimore (1833) (FIRAC)

Facts: Barron wanted the city to pay for the dredging of the Baltimore harbor due to an accumulation of sand and silt from construction but it did not do so. Barron alleged that the accumulation ruined his business since the harbor became too shallow for ships to come into port Barron sued the city asking for compensation for the taking of his private property Issue: Does the Takings Clause apply to the states? Analysis: The Constitution was ordained and established by the people of the US for themselves, for their own government. The powers of the government, and the limits on it are naturally applicable to the government. The Fifth Amendment must be understood as restraining the power of the general government, and it is not applicable to the state. Conclusion: Takings Clause does not apply to the states

Bates v. State Bar of Arizona (1977)

Facts: Bates and Van O'Steen graduated from law school and took jobs at a state legal aid society. They then decided to open a legal clinic to provide services. They placed an ad in an Arizona newspaper to advertise their clinic. The state bar found them guilty of violating the tenet against advertising Issue: May lawyers constitutionally advertise the prices at which certain routine services will be performed? Rule: Commercial Speech is not pure speech, but is given broad protection Analysis: We are not persuaded that the advertising will be misleading An attorney who is going to give bad service will do so whether or not he advertises. If more clinics pop up because of advertising, maybe it will improve service. Conclusion: Lawyers may constitutionally advertise the prices at which certain routine services will be performed Dissent: Rehnquist: First Amendment speech provision, long regarded as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services.

Brandenburg v. Ohio (1969)

Facts: Brandenburg was the leader of an Ohio affiliate of the KKK. To obtain publicity, he invited a Cincinnati Inquirer reporter to attend a rally. Based on films of a speech Brandenburg gave, he was arrested under the Ohio Syndicalism Law, which was passed in 1919 to prevent the spread of unpatriotic views. Issue: Does Ohio syndicalism law violate the First Amendment guarantee of free speech? Rule: Clear and Probable Danger? Analysis: The Ohio law punishes persons who advocate or teach violence of accomplishing political reform. The judge did not refine the definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action Conclusion: Ohio Law violates First Amendment

Branzburg v. Hayes (1972)

Facts: Branzburg wrote two articles about individuals in the drug trade. The first focused on two individuals who synthesized has his from marijuana. The second contained interviews with drug users in Kentucky. Branzburg was subpoenaed by a grand jury to answer questions concerning the identity of the individuals. He refused to do so Issue: Does requiring reporters to appear and testify before grand juries violate their freedom of speech and press guaranteed by First Amendment Rule: Yes, if the state interest is compelling Analysis: We cannot seriously entertain the notion that the 1A protects a newsman's agreement to conceal criminal conduct of his source on the theory that is better to write about crime than to do something about it. Conclusion: Reporter is not shielded, must testify at the grand jury.

Hill v. Colorado (2000)

Facts: Colorado passed a law placing restrictions on protestors within a radius of 100 feet of the entrance to any healthcare facility. Within this zone, the law prohibited anyone from approaching, within 8 feet of another person, without that persons consent for the purpose of distributing literature, displaying a sign, or engaging in oral protest, education or counseling. Hill claims the law prohibits constitutionally protected speech in public forum Issue: Does a law that prohibits someone from approaching another person for those purposes violate the right to free speech in the First and Fourteenth Amendments? Rule: ? Analysis: The regulation here is simply a content neutral, time, place and manner regulation Conclusion: The statute is constitutional

Boy Scouts of America v. Dale (2000)

Facts: Dale joined the BSA and was eventually named an assistant scoutmaster At college Dale acknowledged that he was gay and joined the Gay/Lesbian Alliance. He was subsequently interviewed for a newspaper article where he discussed the need for gay teens to have appropriate role models Shortly after the publication of the article he received a latter from the Monmouth Council revoking his membership. Issue: Does the 1A right to association allow the BSA to forbid membership to homosexuals? Rule: Organizations have the right to associate with individuals that they wish to associate with Analysis: First step is to determine whether the association practiced is expressive. In this case, the BSA is practicing expressive association, and their right to exclude homosexuals is protected. Conclusion: Boy Scouts have a right to exclude

U.S. v. O'Brien (1968)

Facts: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Issue: Does the anti-draft portion of the Selective Service Act violate the First Amendment of the Constitution? Analysis: Used a test for government moderation of symbolic speech that examined whether regulation was content neutral and of sufficient government interest. Conclusion: No 1A violation

Schneck v. US (1919)

Facts: During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the First Amendment. Issue: •Does the Espionage Act violate the First Amendment guarantee of free speech? Analysis: Clear and present danger test. Speech that creates a clear and present danger that Congress has the power to prevent is not protected by the 1A. Conclusion: Espionage Act did not violate the First Amendment

Texas v. Johnson (1989)

Facts: During the 1984 Republican National Convention in Dallas, protesters assembled outside. Gregory Johnson, a protestor, unfurled an American flag, doused it in kerosene, and set it on fire. Johnson was arrested and charged with violating the Texas flag desecration law. He was convicted, and sentenced to prison and a fine. Issue: Does a state law that prohibits the burning of the American flag violate the First Amendment's freedom of expression clause? Analysis: Burning of a flag is protected under the First Amendment. Held that the First Amendment does not cease to apply just because the public or an audience finds an action to be offensive or disagreeable. Conclusion: Johnsons actions protected as symbolic speech under 1A.

Hazelwood School District v. Kuhlmeier (1988)

Facts: Editors of the Spectrum, a High School Newspaper, planned to publish articles on teen pregnancy and divorce. The principal said that the way the stories were written, readers would be able to tell who the students were. As such, he would not allow the publication. The student staff challenged this ruling as censorship. Issue: May educators exercise editorial control over the contents of a high school publication produced as part of the school's journalism curriculum? Rule: Prior restraint requires a compelling need, but Student speech is different (Morse v. Frederick) Analysis: Students cannot be punished for merely expressing their personal views on school premises unless school administrators have reason to believe that the expression will substantially interfere with the work of the school or impinge on the rights of other students The activities in question are part of school curriculum, and educators are entitled to exercise greater control over such activities to make sure that students learn the lesson that is being taught. Conclusion: Educators may exercise editorial control over the contents of a high school publication produced as part of the school's journalism curriculum.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)

Facts: Hosanna Tabor operates a small school offering a christ centered education for K-8. Its teachers are called which means they were invited to their vocation by God through a congregation and therefore deemed ministers. Alternatively, the school hires lay teachers, which means they are not deemed ministers. Perich began at Hosanna-Tabor as a lay teacher, but was soon called. She took a leave of absence for narcolepsy, and when she came back she was asked to resign. She refused and threatened to sue, at which point her contract was terminated. Issue: Do the Establishment and Free Exercise Clauses of the First Amendment bar employees who have been wrongfully terminated to see their employers when the employer is a religious group and the employee is one of the group's ministers? Analysis: The First Amendment itself, which gives special solitude to the rights of religious organizations. We cannot accept the remarkable view that the religion clauses have nothing to say about a religious organizations freedom to select its own ministers It is true that the ADA's prohibition on retaliation is a valid and neutral law of general applicability. But a church's selection of its ministers is unlike an individuals's ingestion of peyote. As such, Smith is inapplicable. Conclusion: Perich's firing is permissible

Hurtado v. California (1884) (FIRAC)

Facts: Hurtado shot and killed his wife's lover. While defendants often faced a grand jury to determine if there was enough evidence for a trial, California allowed prosecutors to use any information to initiate a trial, rather than a jury. This method was used to bring Hurtado to trial, and he was found guilty of murder. Hurtado argued that he had a right to a grand jury and a due process of law. Issue: Does an individual accused of a capital crime have a right to a grand jury in a state court under the 5th amendment? Rule: Plain Meaning is Key Analysis: Because due process is included in the 5th amendment, it could not be equivalent to the entire Bill of Rights. Indeed, because it is contained in the 5th amendment, it applies only to this amendment. Inclusion of the term due process in the 14th amendment cannot mean that it incorporates all of the Bill of Rights. Conclusion: An individual accused of a capital crime does not have a right to a grand jury in state court

Everson v. Board of Education (1947)

Facts: In 1941, New Jersey passed a law authorizing local school boards to provide transportation for public school children to and from school, and to supply transportation to school children living in the district who attended nonprofit private schools Ewing Township decided to use tax dollars to reimburse parents for transportation costs. Because the township had no high school of its own, the reimbursement policy covered transportation expenses to parents sending their children to three neighboring public schools and four private schools which were affiliated with the Roman Catholic Church Issue: Does reimbursing parents (with tax dollars) for transporting their children to private religious schools violate the establishment clause? Rule: Accomodationalist Analysis: The establishment of religion clause in the 1A means at least this: neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another. In fact, no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion The First Amendment only needs to remain neutral. Here the state does not contribute money to schools. New Jersey has not breached the high and impregnable wall between church and state Conclusion: The reimbursement program is constitutional

Dennis v. U.S. (1951)

Facts: In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the US government and for the violation of several points of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. The party members who had been petitioning for socialist reforms claimed that the Act violated their First Amendment rights. Party leaders were found guilty and lower courts upheld the conviction. Issue: Did the Smith Act violate the First Amendment?\ Analysis: Petitioners engaged in direct advocacy, not just speech. But, given that there is an element of speech, we must pay special heed to the demands of the First Amendment marking out the boundaries of speech We reject the Clear and Present Danger Test We must determine in each case whether the gravity of the evil, discounted by its improbability, justifies the inaction of free speech necessary to avoid the danger. We adopt this statement as the rule. Conclusion: Smith Act does not violate First Amendment

City of Boerne v. Flores (1997)

Facts: In 1991, St. Peter the Apostle Church received permission from the archbishop of San Antonio to demolish its current structure and build a new seven hundred seat church, more than tripling its capacity. City officials rejected the permit request on the grounds that the church was covered by the city's historical prevention program Archbishop Flores sued, claiming that church building was free exercise Issue: Does the RFRA impermissibly interfere with local governmental power to decide how to balance individual rights and governmental authority? Rule: Smith incidental impact? RFRA strict scrutiny? Analysis: Requiring the state to demonstrate a compelling interest and show that is has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. This is a considerable congressional intrusion into states' traditional prerogatives and general authority to regulate for the health and welfare of their citizens When Congress acts within its sphere of power it has the due to make its own informed judgement as to what is constitutional. Here, the RFRA was designed to control cases and controversies which is beyond the scope of congressional power. It is this court's precedents, not the RFRA that must control Conclusion: The RFRA impermissibly interferes with local government power to decide how to balance individual rights and governmental authority

Morse v. Frederick (2007)

Facts: In 2002, the Olympic Torch Relay passed along a street in front of a high school in Alaska. Students from the high school were permitted to leave class to observe the event as a part of an approved school activity As the torchbearers and television cameras passed by, Frederick a senior at the high school, and some friends unfurled a 14 foot Bong Hits 4 Jesus banner. School principal suspended him for 10 days on the grounds that the violated school policy by advocating illegal drug use. Issue: Does a principals restriction of student speech, which might reasonably be viewed as promoting drug use at a school event violate the first amendment? Rule: Speech in schools is different, but it doesn't cause a disruption, it is permissible (Tinker) Analysis: Students in a public school setting do not have the same constitutional rights as adults in normal settings. Second, while children do not completely lose their rights at the schoolhouse door (Tinker), the nature of the rights must be appropriate for school and children. Conclusion: The suspension is upheld

McCullen v. Coakley (2014)

Facts: In 2007, Massachusetts made it a crime to knowingly stand on a "public way or sidewalk" within thirty five feet of an entrance or driveway to any "reproductive health care facility" McCullen, engaged in a pro life sidewalk counseling of those entering abortion clinics, and other-pro life activists sued the Massachusetts AG Coakley, claiming the law violates the First Amendment Issue: Is the Massachusetts law content neutral, narrowly tailored, and written so that it leaves alternative channels of communication? Rule: Content Neutral; Time, Place, Manner Analysis: Even though the Act is content neutral, it still must be "narrowly tailored to serve a significant governmental interest The zone compromises petitioners ability to initiate the close, personal conversations that they view essential to sidewalk counseling Conclusion: MA law unconstitutional, Hill overturned

U.S. v, Alvarez (2012)

Facts: In 2007, at a board meeting, Alvarez introduced himself as being a retired Marine and earning the Medal of Honor. The statement was false. Alvarez never served in the armed forces. The FBI obtained a recording of the July 2007 board meeting. Alvarez was indicted for violating the federal Stolen Valor Act. Issue: Does a federal law that prohibits the unauthorized wear, manufacture, or sale of military decorations or medals violate the First Amendment's freedom of expression clause? Rule: Content-based Analysis: While there may exist some categories of speech that have been historically unprotected, but that the court has not yet specifically identified or discussed. The government has not demonstrated that false statements should constitute a new category. Conclusion: Law unconstitutional

Lee v. Weisman (1992)

Facts: In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. Issue: Do religious invocations and benedictions during a public school graduation ceremony violate the Establishment Clause of the First Amendment? Rule: Lemon Test Analysis: The Constitution forbids the state to exact religious conformity from a student as the price of attending her own high school graduation. Conclusion: Religious invocations and benediction during a public school graduation violate the Establishment Clause

New York Times v. United States (1971)

Facts: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Issue: Does the government interest in protecting national security justify prior restraint? Analysis: Prior restraint in this case did not overcome the Court's standard of heavy presumption against it. The Court reasoned that the information published was mostly historical and did not pose a significant enough threat to national security. Conclusion: No, it does not justify prior restraint

Wisconsin v. Yoder (1972)

Facts: Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Issue: Do compulsory education laws that force the Amish to send their children to school violate the free speech clause through the Fourteenth Amendment? Analysis: The Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade.

Snyder v. Phelps (2011)

Facts: LCPL Snyder died while serving in Iraq. Frank Phelps, Sr., founder of Westboro, decided to picket Snyder's funeral. The protestors complied with all local ordinances and police directions. The picketing took place 1000 feet from the church entrance in a fenced in area on public land. None of the protesters approached funeral participants Albert Snyder filed a civil suit against Phelps and the Westboro Baptist Church claiming intentional infliction of emotional distress, an unlawful act under Maryland law. The protestors argued their words were expressions of opinion on public issues and hyperbole rather than factual statements, and thus were protected by the First Amendment Issue: Do citizens have the right, under free speech clause of the First Amendment, to protest at military funerals, even if such protests might cause severe emotional distress? Rule: Time, place and manner Content-based restrictions on speech are presumed invalid, and that the Government bear the burden of showing their constitutionality Analysis: The content of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of purely private concerns. The fact that Westboro spoke in connection with a funeral does not change the nature of Westboro's speech Westboro's choice of where and when to conduct its picketing is subject to time, place or matter restrictions. However, Westboro's speech was at a public place on a matter of public concern and is therefore entitled to special protection under the First Amendment Conclusion: Citizens have the right, under the free speech clause of the First Amendment, to protest at military funerals, even if such protests might case severe emotional distress

Slaughterhouse Cases (1873)

Facts: Louisiana restricted slaughterhouse operations in New Orleans to one corporation, creating a monopoly. Butchers and laborers sued claiming that the monopoly was a violation of their rights under the 13th and 14th Amendments . Issue: Did the monopoly create violations of the 13A/14A? Analysis: Court reasoned that these amendments had the narrow focus of protecting former slaves. This stopped incorporation of the Privileges and Immunities clause to the states. Conclusion: Louisiana law was constitutional

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

Facts: Masterpiece Cakeshop refused to provide a wedding cake to a gay couple based on the owner's (Phillips')religious beliefs. The Colorado Civil Rights Commission, evaluating the case under the Colorado Anti-Discrimination Act, found that the bakery had discriminated against the couple and issued specific orders for the bakery. Issue: Does the Colorado Anti-Discrimination Act violate Phillips' right to free exercise of religion? Analysis: •The state exhibited religious hostility and did not act with religious neutrality. Conclusion: The decision of the Colorado Civil Rights Commission is overturned.

U.S. v. Miller (1939)

Facts: Miller and Layton were indicted for transporting in interstate commerce an unregistered sawed-off shotgun The indictment charged them with violating the National Firearms Act of 1934, which required them to register the gun. Issue: Does the National Firearms Act violate the Second Amendment? Rule: Collective Approach, rational basis Analysis: The court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon We cannot say the 2A guarantee the right to keep and bear such an instrument as a sawed-off shotgun. Certainly, it is not within the judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense Conclusion: NFA constitutional

Zelman v. Simmmons-Harris (2002)

Facts: Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. Issue: Does Ohio's school voucher program violate the Establishment Clause? Analysis: Court reasoned that Ohio's program was intended simply to provide educational opportunities to children in a general sense, and religious schools only became involved due to deliberate parent choice. Conclusion: Ohio program constitutional

Chaplinksy v New Hampshire (1942)

Facts: On a public sidewalk in downtown Rochester, Walter Chaplinsky was distributing literature that supported his beliefs as a Jehovah's Witness and attacked more conventional forms of religion. Chaplinsky called the town marshal "a ********ed racketeer" and "a damned Fascist." He was arrested and convicted under a state law that prohibited intentionally offensive, derisive, or annoying speech to any person who is lawfully in a street or public area. On appeal, Chaplinsky argued that the law violated the First Amendment on the grounds that it was overly vague. Issue: Did the conviction violate the First Amendment? Analysis: The Court found that Chaplinksy's speech fell into the category of "fighting words", which cause harm to the person they are directed at. These are not protected under the First Amendment. Conclusion: Conviction upheld

Palko v. Connecticut (1937) (FIRAC)

Facts: Palko robbed a store and shot and killed two police officers. At his trial, the judge refused to admit Palko's confession into evidence, and Palko was only convicted of second degree murder. The state appealed to the state supreme court, which reversed the exclusion and ordered a new trial. Palko argued that a new trial would be a violation of the Fifth Amendment's prohibition against double jeopardy. Palko was again tried and found guilty of first degree murder. Issue: Does the 5th Amendment's protection against double jeopardy apply to the states through the guarantee of Due Process? Rule: To be incorporated, rights must be fundamental and inalienable Analysis: There is no general rule that whatever would be a violation of the original bill of rights is now equally unlawful by force of the 14th Amendment if done by a state. Fundamental to the concept of Due Process is a fair trial and that includes having all the proper facts. Here, we ask whether this is the kind of double jeopardy to which the statute has subjected him to a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions? The answer must be "no". Conclusion: Double jeopardy protection is not incorporated

Sherbert v. Verner (1963)

Facts: Sherbert was a member of a 7th day Adventist church which held that no work be performed between sundown on Friday and sundown on Saturday. Her employer informed her that work on Saturdays would no longer be voluntary - to retain her job, she would need to report to work every Saturday. After missing six consecutive Saturdays, she was fired from her job Sherbert filed for state unemployment benefits, but the law stated that individuals were not eligible for such benefits if they failed to accept suitable work, without cause, when it was offered. In short, her religious preferences were an insufficient reason for her refusal to work Issue: May a state deny unemployment benefits to persons whose religious beliefs preclude them from working on Saturdays Rule: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof Analysis: The denial of an appellant's benefits is based solely on the practice of her religion. Such a decision forms her to choose between following the precepts of her religion and foregoing benefits, or abandoning her religious precepts and accepting work. This type of imposition essentially fines appellant for Saturday worship States must have a compelling interest to regulate on this subject. There is no compelling reason for regulation Conclusion: Statute is unconstitutional

Van Orden v. Perry (2005)

Facts: The 22 acre park surrounding the Texas State Capitol contains 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texas identity." Among the monuments was a 6-foot high monument of the Ten Commandments. Van Orden, who walked through the park, filed suit against Governor Perry asking for the removal of the Ten Commandments monument because its presence on the capitol grounds violated the establishment clause Issue: Does the establishment clause allow the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds? Rule: Lemon test? Something else? Analysis: Many of our recent cases have not applied the Lemon test. Here, we think Lemon does not apply either because we are dealing with a passive monument. Instead our analysis should be guided by the nature mod the monument and by our Nation's history. The display here has dual significance, partaking of both government and religion Conclusion: Texas capitol display not constitutional

Burwell v. Hobby Lobby Stores, Inc (2014)

Facts: The RFRA was amended in 2000 by the RLUIPA, which redefined exercise of religion as any exercise of religion, whether or not compelled by, or central to a system of religious beliefs In 2010, Congress passed the ACA, which uses the department of health and human services to specify what kinds of preventative care for women should be covered in certain employer based health plans. Companies that refuse are fined 100 dollars per individual per day Issue: Are for-profit, closely held corporations exempt from a regulation that its owners religiously object to? Analysis: Compelling government interest test is uses, incidental impact is rejected HHS did not show a compelling interest HHS did not show that the mandate was the least restrictive means of furthering a now compelling governmental interest Conclusion: For-profit, closely held corporations are exempt from a regulation that its owners religiously object to.

School District of Abington Township v. Schempp (1963)

Facts: The Schempps were members of a Unitarian church where they regularly attended services. However, they did not want their children to engage in Bible reading at their public school. Pennsylvania law mandated that at least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each day. The reading go the Lord's Prayer followed the Bible verses at Abington High. Those students who did not want to participate could leave the room. Issue: Does the reading of the Bible and the Lord's Prayer in a public school violate the Establishment Clause of the First Amendment? Rule: Separationalist - Engle v. Vitale (1962) Analysis: Everson said that neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. In short, the state must be neutral. The two religion clauses of the First Amendment overlap. A violation of the free exercise clause is predicated on coercion while an establishment violation need not be so attended. Instead, the test for the latter is whether there is a secular legislative purpose for a law and whether the primary effect of the law advances or inhibits religion Conclusion: The reading of the Bible and the Lord's Prayer in public violates the Establishment Clause

Rumsfeld v. FAIR Inc (2006)

Facts: The Solomon Amendment withdrew federal funds from any college or university that denied military recruiters access. Congress passed the law in reaction to several colleges that objected to a provision in federal law that allows the military to dismiss anyone in engaging in homosexual activity. FAIR filed suit, believing that the forced inclusion and equal treatment of military recruiters violated its members First Amendment freedom of speech and association Issue:May Congress withhold funds from colleges and universities who deny recruiters campus access? Rule: O'Brien: 4-prong test Analysis: Under this statute, law schools remain free to express whatever views they have on the military's employment policy. It affects only what law schools must do, what they may or may not say Conclusion: Congress can withhold funds

Chicago, Burlington, and Quincy Railroad v. Chicago (1897)

Facts: The city of Chicago wanted to connect two ends of a street, which forced them to condemn land, part of which was owned by the railroad company (right of way deed). The other owners of the land were compensated, and the railroad was paid a single dollar. The railroad sued, claiming this was a violation of of the Due Process Clause Issue: Did Chicago's condemnation of and compensation for Chicago, Burlington, and Quincy Railroad's land violate the Due Process clause of the Fourteenth Amendment? Analysis: The Court ruled that the Due Process Clause required states to provide just compensation for eminent domain acquisitions. Conclusion: Ruling in favor of railroad

Town of Greece v. Galloway (2014)

Facts: The town of Greece, New York, is governed by a five-member town board that conducts official business at monthly public meetings. Starting in 1999, the town meetings began with a prayer given by an invited member of the local clergy. The town did not adopt any policy regarding who may lead the prayer or its content, but in practice, Christian clergy members delivered the vast majority of the prayers at the town's invitation. In 2007, Susan Galloway and Linda Stephens complained about the town's prayer practices, after which there was some increase in the denominations represented. Issue: Has the town of Greece, New York, imposed an impermissible establishment of religion by opening its monthly board meetings with a prayer. Analysis: The content of this prayer does not need to be non-sectarian, because such a requirement would place the courts in the role of arbiters of religious speech, which would involve the government in religion to an extent that is impermissible under the Establishment Clause. Conclusion: Greece's prayer constitutional

Wisconsin v. Mitchell (1993)

Facts: Todd Mitchell, a young black man, instigated an attack against a young white boy. He was subsequently convicted of aggravated battery. According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. Mitchell challenged the constitutionality of the increase in his penalty Issue: •Does a law that enhances penalties for crimes based on hate violate the constitutional right to free speech? Analysis: The statute in this case is directed at conduct unprotected by the First Amendment. Indeed, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. Conclusion: Statute is constitutional

Trinity Lutheran Church v. Comer (2017)

Facts: Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion." Issue: Does the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment's guarantee of free exercise of religion and the Fourteenth Amendment's Equal Protection Clause? Analysis: Laws that deny an otherwise generally available benefit because of religious status are unconstitutional, though laws that are neutral and generally applicable may be upheld even if they hamper religion.The law did not need to prevent the religious organization from practicing its religious; it was sufficient that the law denied a religious organization the same opportunity to compete for a benefit that is otherwise available to all secular organizations. Conclusion: Violation of 1A

Employment Division of Oregon v. Smith (1990)

Facts: Two members of the Native American Church were fired from their jobs as drug counselors for ingesting peyote during a private religious ceremony. They both applied for unemployment benefits but were turned down by the state because they had been fired for misconduct, under state law, workers discharged for that reason cannot obtain benefits Smith argued that the state could not deny benefits because he was unwilling to give up an activity mandated by religion. The state argued that the use of peyote was prohibited by a general criminal statute and therefore was not inhibiting religion Issue: Can a state deny unemployment benefits to those who lost their jobs because they violated a general law, even when the action was taken based on religious convictions? Rule: Strict Scrutiny? Secular Policy? Analysis: Even if we were to move this precedent beyond unemployment cases, we would not apply ir ro require exemptions from a generally applicable criminal law. Indeed, to make an individuals obligation continent on a compelling state interest contradicts both constitutional tradition and common sense. The result of such a standard is that it would create a private right to ignore generally applicable laws Conclusion: Because respondent's ingestion of peyote was prohibited, and because that prohibition is constitutional, Oregon may deny unemployment benefits.

West Virginia v. Barnette (1943)

Facts: West Virginia mandated that all public school students salute the flag during the Pledge of Allegiance Issue: May a state, consistent with the First Amendment, force students to salute the American flag and recite the Pledge of allegiance? Analysis: The state may require teaching by instruction and study of all in out history and in structure and organization of our government. However, here we are dealing with a compulsion of students to declare a believe Conclusion: WV statute unconstitutional

Cantwell v. Connecticut (1940)

Facts: •Cantwell and his sons, members of the Jehovah's Witnesses sect, were distributing pamphlets to citizens walking the streets of New Haven. Two passersby took offense to the anti-Catholic message from Cantwell and the next day he was arrested by the police for violating a state law prohibiting individuals from soliciting money for any cause without a license. The law required those who wanted to solicit to obtain a certificate of approval from the state's secretary of the Public Welfare Council. The official could grant the permit if it was meant for a religious cause or for charity. If the official found that neither of these were the purpose of the solicitation, he could deny the certificate. Issue: •Does requiring a person to obtain a certificate in order to solicit support for their religious views violate the free exercise clause? Rule: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...", Analysis: •The First Amendment embraces two concepts, freedom to believe and freedom to act. The first is absolute, but the second cannot be. Indeed, conduct remains subject to regulation for the protection of society. However, such regulations must not infringe on duly protected freedom. Conclusion: Requirement is unconstitutional - Neutral laws are fine, but in this case the law did not meet this standard.

First National Bank of Boston v. Bellotti (1978)

Facts: •The National Bank of Boston, with other national banks and corporations, wished to spend money to publicize their opposition to a ballot initiative that would permit Massachusetts to implement a graduated income tax. •The Attorney General of Massachusetts informed the organizations that he intended to enforce a state statute that prohibited such organizations from making contributions to influence the outcome of a vote that does not materially affect their assets and holdings. Issue: •Does the First Amendment protect the rights of corporations to attempt to influence the outcome of elections in which they have no direct monetary interest? (Does Section 8 abridge expression that the First Amendment was designed to protect?) Rule: Commercial speech is not pure speech, but it is given broad protection Analysis: •The speech proposed is at the heart of the First Amendment's protection. •There is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. •The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual. Conclusion: Section 8 abridges protected expression, and is unconstitutional

School District of Abington Township v. Schempp (1963) Impact

Further developed school-related religious regulation. Christian practices specifically cannot be made mandatory, as they favor one religion over others.

New York Times v. United States (1971) Impact

Further developed the presumption against prior restraint.

Morse v. Frederick (2007) Impact

Further develops the principle that schoolchildren still have protected speech rights, but establishes the fact that those rights must be appropriate for the schoolchildren in question, and cannot create a disruption.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) Impact

Further enforced the religious protection of private business owners. Those owners can refuse business for religious reasons.

American Legion v. American Humanist Ass'n (2019) Impact

Further outlines issues with the Lemon test and moves further away from it.

Bates v. State Bar of Arizona (1977) Impact

Further protects commercial speech, established ability for attorneys to advertise their services

Everson v. Board of Education (1947) Impact

Incorporated the establishment clause Ruled that there is a strong wall of separation between church and state (but not separationalist) Led to diverse conclusions about this clause. Indeed, majority and dissent used the same standard to reach different conclusions

Duncan v. Lousiana (1968) Impact

Incorporated the right to trial by jury from the Bill of Rights to the states.

Lemon v. Kurtzman (1971) Impact

Lemon Test

Lee v. Weisman (1992) Impact

Lemon test still valid law. No general consensus on Rehnquist court. Religion cases largely decided case by case.

Van Orden v. Perry (2005) Impact

Starts to move away from Lemon test, at least in terms of religious displays

Barron v. Baltimore (1833) (Effect)

The Bill of Rights does not directly apply to the states

Goldman v. Weinberger (1986) Impact

The military has a special interest in subordinating individual interests for discipline.

Hazelwood School District v. Kuhlmeier (1988) Impact

There is a lower barrier to justify prior restraint when the publication is a part of a school curriculum.

Maxwell v. Dow (1900)

This case involved whether, for a noncapital case, juries could have fewer than twelve members, and not allow the accused to face a grand jury. Maxwell wanted both rights incorporated under both the due process and privileges or immunities clauses of the Fourteenth Amendment. Also asked the Court to rectify the contradiction from the previous two cases. The Court refused to do so and basically ignored the incorporation issue.

Chicago, Burlington, and Quincy Railroad v. Chicago (1897) (Effect)

This was the first case where a portion of the Bill of Rights was incorporated to the states. Specifically, the just compensation portion of the 5th Amendment, via the 14th Amendment's Due Process Clause.

Twining v. New Jersey (1908)

•Some provisions of the Bill of Rights might be protected from state abridgment through the due process clause of the Fourteenth Amendment. •No complete incorporation - the Court will only do so selectively. •However, the right against self-incrimination did not need to be protected against state action.

Gitlow v. New York (1925) (Impact)

•The Court ruled against Gitlow, but incorporated free speech. •First meaningful step toward selective incorporation because the Court made specific provisions of the Bill of Rights applicable to states.