Establishment Clause or Free Exercise Clause?

1
Establishment Clause or Free Exercise Clause?

1. The words in God we trust on money.
2. Public schools beginning each day with a prayer
   over the intercom.
3. Banning Native Americans from smoking peyote
   (marijuana) as a religious practice.
4. Forbidding human sacrifice in satanic churches.
5. Letting Congress begin their sessions with a
   prayer.
6. Teaching creationism in biology classes.
7. Banning same sex marriages because most churches
   in the U.S. are opposed to them.
8. Making Christian holidays national holidays.
9. Banning polygamy in the Mormon church.
10. Banning prayers from graduation ceremonies in
    public schools.

2
Did Sleazy GDE cross the line?

• Famous rap artist Sleazy GDE has recently
  released a very controversial album entitled
  Freedom. There are several songs on the album
  that have caused concern. In The Prez, sleazy
  hurls insults and obscenities at Barack Obama
  and encouraged Americans to write in Kanye West
  in the 2016 presidential election. Sleazy claims
  Kanye is one fked up G that will rape your girl
  and blast you in a heartbeat. In Whore, Sleazy
  degrades women, encourages men to leave their
  families, and fk the b---h up good cuz she
  deserves it. In Rebel, the most controversial
  song on the album, Sleazy encourages all
  Americans to stop following all laws in the
  coutry and blast any patriotic, red, white and
  blue mutha fker that stands in your way. The
  state of Illinois bans the sale of the album.
  Sleazy files suit claiming his freedom of speech
  rights have been violated.

3
Congress shall make no lawabridging the freedom
of speech, or of the press

• Freedom of Speech and Freedom of Press guarantees
  are meant to
• Protect each persons right of free expression,
  whether spoken, written, or communicated in any
  other way.
• Protect a citizens right to be informed.
• But these rights are not absolute.

4
Libel and Slander are illegal

• Slander - the false and malicious use spoken
  words.

• Libel - the false and malicious use of written
  words.

N.Y. Times v. Sullivan Actual malice must be
proved before you can sue for punitive damages.
5
Seditious Speech is not protected

• Wartime Sedition - Taking any action that is a
  hindrance to the war effort.
• Peacetime Sedition Encouraging others to break
  the law or overthrow the government.
• Schenk v. U.S. (1919) Clear and present danger.
• Video

• Sedition - attempting to overthrow the government
  by force, or to disrupt its lawful activities by
  violent acts.
• Seditious speech - speech that urges such
  conduct.

6
Which definition applies to our current situation?
7
Which of these is obscene?
8
The Obscenity Test

• Miller v. California - 1973
• Something is obscene if
• The average person finds that it appeals to
  prurient (sexual) interests judging from local
  standards.
• It depicts offensive sexual conduct that is
  specifically outlawed as obscene.
• It lacks serious scientific, social, cultural or
  artistic value.

9
Is this obscene?

• Miller v. California - 1973
• Something is obscene if
• The average person finds that it appeals to
  prurient (sexual) interests judging from local
  standards.
• It depicts offensive sexual conduct that is
  specifically outlawed as obscene.
• It lacks serious scientific, social, cultural or
  artistic value.

10
Is this obscene?

• Miller v. California - 1973
• Something is obscene if
• The average person finds that it appeals to
  prurient (sexual) interests judging from local
  standards.
• It depicts offensive sexual conduct that is
  specifically outlawed as obscene.
• It lacks serious scientific, social, cultural or
  artistic value.

11
Is this obscene?

• Miller v. California - 1973
• Something is obscene if
• The average person finds that it appeals to
  prurient (sexual) interests judging from local
  standards.
• It depicts offensive sexual conduct that is
  specifically outlawed as obscene.
• It lacks serious scientific, social, cultural or
  artistic value.

12
Is this obscene?

• Miller v. California - 1973
• Something is obscene if
• The average person finds that it appeals to
  prurient (sexual) interests judging from local
  standards.
• It depicts offensive sexual conduct that is
  specifically outlawed as obscene.
• It lacks serious scientific, social, cultural or
  artistic value.

13
Is this obscene?

• Miller v. California - 1973
• Something is obscene if
• The average person finds that it appeals to
  prurient (sexual) interests judging from local
  standards.
• It depicts offensive sexual conduct that is
  specifically outlawed as obscene.
• It lacks serious scientific, social, cultural or
  artistic value.

14
Symbolic Speech

• The Supreme Court has not protected all forms of
  symbolic speech.
• United States v. OBrien (1968) burning a draft
  card is not protected.
• Texas v. Johnson (1989) burning the American flag
  is protected.

• Symbolic speech is expression by conduct.
• Examples picketing, marching in a protest,
  sit-ins.

15
Censoring the Press is not allowed (usually)

• Prior Restraint Government action that stops a
  story before it is published.

• Near v. Minnesota (1931) Protected the
  publication of a malicious, scandalous, and
  defamatory periodical.
• New York Times v. U.S. (1971) Protected the
  publication of the Pentagon Papers because the
  government could not prove they endangered
  national security.
• However
• Hazelwood School District v. Kuhlmeier (1988)
  School administrators can censor student
  newspapers.

16
Other media/censorship cases
17
(No Transcript)
18
(No Transcript)
19
(No Transcript)
20
(No Transcript)
21
Commercial Speech

• Commercial Speech is speech for business
  purposes, usually advertising.
• Advertising is protected by the 1st, but not
  without exceptions.
• Exceptions include
• Barring false and misleading advertisement
• Banning the advertising of illegal goods or
  services
• Banning tobacco ads from radio, television and
  billboards

22
Joe Camel
23
Master K.K.K.

• On his newly released album Aryan Nation, white
  supremacist rap artist Master KKK includes a
  track entitled The only good one is a dead one.
  The lyrics of this song implicitly encourage
  physical violence against African Americans. In
  another track, Why didnt Hitler invade Africa,
  Master KKK advocates the genocide of the African
  race. Concerned citizens and state officials in
  Illinois decide the album is too violent,
  extremely offensive and ban the sale of it within
  state boundaries. Master KKK sues claiming his
  1st amendment rights have been violated. I you
  are the judge in the case, how will you side?