Establishment Clause or Free Exercise Clause?

Establishment Clause or Free Exercise Clause? • The words “in God we trust” on money. • Public schools beginning each day with a prayer over the intercom. • Banning Native Americans from smoking peyote (marijuana) as a religious practice. • Forbidding human sacrifice in satanic churches. • Letting Congress begin their sessions with a prayer. • Teaching creationism in biology classes. • Banning same sex marriages because most churches in the U.S. are opposed to them. • Making Christian holidays national holidays. • Banning polygamy in the Mormon church. • Banning prayers from graduation ceremonies in public schools.

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 f—ked 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 “f—k 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 f—ker 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.

“Congress shall make no law…abridging the freedom of speech, or of the press…” • Freedom of Speech and Freedom of Press guarantees are meant to: • Protect each person’s right of free expression, whether spoken, written, or communicated in any other way. • Protect a citizen’s right to be informed. • But these rights are not absolute.

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.

Seditious Speech is not protected Sedition-attempting to overthrow the government by force, or to disrupt its lawful activities by violent acts. Seditious speech - speech that urges such conduct. • 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

Which definition applies to our current situation?

Which of these is obscene?

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.

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.

Symbolic Speech Symbolic speech is expression by conduct. Examples: picketing, marching in a protest, sit-ins. The Supreme Court has not protected all forms of symbolic speech. United States v. O’Brien(1968) burning a draft card is not protected. Texas v. Johnson(1989) burning the American flag is protected.

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.

Other media/censorship cases

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

Joe Camel

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 didn’t 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?

Establishment Clause or Free Exercise Clause?