CONSTITUTIONAL LAW 1 4 FIRST AMENDMENT First Amendment

CONSTITUTIONAL LAW 1. 4 FIRST AMENDMENT

First 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 Freedom of religion is protected by two clauses, the establishment clause and the free exercise clause. The establishment clause forbids the government from setting up a state religion or endorsing/supporting religion and from preferring one religion over another. Thomas Jefferson referred to the establishment clause as the “wall of separation between church and state. ” The Supreme Court uses a three-part test (established in Lemon v. Kurtzman) to determine whether a government law or action meets the requirements of the establishment clause: The challenged law/government action must have a secular purpose. The primary effect of the law/action must be to neither advance nor inhibit religion. The operation of the law/action must not foster excessive entanglement of government with religion.

Freedom of Religion The free exercise clause protects the rights of individuals to worship or believe as they choose. Religious belief is protected, but religious action may not be. Example: even if your religion says you are free to have more than one wife, it is illegal to do so in the United States. The Supreme Court ruled that states must have a “compelling interest” before outlawing religious conduct. Example: Church of Lukumi Babalu Aye v. City of Hialeah

Freedoms of Assembly & Petition The freedom of petition allows citizens to criticize, sue, and lobby the government. The freedom of assembly and freedom of petition often go hand in hand—the Supreme Court has argued that the right to petition is the primary freedom, but often, there is no distinction between the two.

Freedom of Press The First Amendment also guarantees freedom of the press, protecting us from government censorship of newspapers, magazines, books, radio, TV, and film. Prior restraint refers to censorship before publication. Attempts to censor publications before they go to press are considered unconstitutional unless: Publication would cause a certain, serious, and irreparable harm. No lesser means would prevent the harm. The prior restraint would be effective in avoiding the harm.

Freedom of Speech The First Amendment protects the freedoms of speech and expression. Obscenity, defamation, commercial speech, fighting words, and hate speech are not protected by the First Amendment. If a speaker is advocating illegal activities, judges use the following tests to determine how to deal with them: Clear and present danger test: do the circumstances under which the speech was made present a clear and present danger of unlawful action? Balancing test: how do the rights of the speaker and the harm they are proposing balance out? Incitement test: is the speaker inciting or producing immediate lawless action from the audience or was the advocacy likely to produce such behavior? The unlawful action must occur within a short period of time.