Congress shall make no law . . .

abridging the freedom of speech

1: What is speech? Answer by deciding what does not deserve constitutional protection. The broad categories of expression that can be banned or punished by the government because they are not speech: Consider the funeral protesters cases in this context. Some courts have ruled the funeral protestors words are so inflammatory they do not deserve protection, Lies (including defamation, libel and slander); Crime related speech (blackmail, plans to commit crimes). Hate speech is protected but governments can punish hate crimes more harshly than the same crime done without a hate basis. Also, true threats (speech the victim could legitimately think would lead to harm); Fighting words (direct personal insults so inflammatory they invite retaliation and threaten to create a breach of the peace.) Does not extend to generalized comments insulting groups; most likely to be punished if includes an assault element, not just words; Obscenity and child pornography (So hard to define one justice said, I know it when I see it.) Local governments tend to control by zoning: not letting the offensive material be sold except in certain places.

Freedom of speech

Commercial speech (expression related to buying and selling) is given less constitutional protection than other speech; governments can control advertising to some extent. (Disclaimers like results not typical or I am the candidate and I approve this message)

2: When does protected speech stray over the line? Supreme Court tries to articulate the test: speech is not protected if it creates a clear and present danger to others. (Gitlow v. NY). Courts have tried to sharpen that definition: a clear and present danger exists if the speaker is inciting imminent violent or lawless action (Brandenburg v. Ohio); Ultimately, what the court is doing is balancing the speakers interest in free expression against societys interest. Societys interest can trump the speakers most often in national security situations Speech can be broadly interpreted to include expression that does not include words. Flag burning, dancing and campaign finance donations are protected under the First Amendment. 3. What if the government wasnt trying to ban speech, but had some other goal entirely? Laws that limit passing out fliers on public property or playing loud music after a certain time of day may affect speech but are not based on the content of the speech. Governments may pass these types of laws as long as the laws are content neutral, narrowly tailored and allow ample means of other communication Governments can restrict the time, place and manner of your speech even if they cannot stop you from saying the words. They can require permits for protests and marches, they can impose time limits on speeches at government meetings, they can restrict placing leaflets or papers on windshields of cars parked in public parking lots. (but probably cannot stop you from profane speech, even at public events)

The clear and present danger test was first set out in the Schenk v. US case, as the federal definition of how to judge when speech crossed the line. In Gilow, the clear and present danger test was incorporated into the Due Process clause of the 14 th Amendment. The federal courts, not states, now define what freedom of speech means.

Freedom of Religion
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
The Establishment Clause Congress cannot create a national religion. The government cannot favor one religion over another, nor can the government favor religious activity over nonreligious activity. Thomas Jefferson said there should be a wall of separation between religion and the government (church and state).
The Lemon test (Lemon v. Kurtzman) set up the analysis for whether a government policy would be allowed under the Establishment Clause: The government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive government entanglement with religion. In Lemon, the Court said that Pennsylvania could not pay for textbooks or teachers for religious schools, even in nonreligious subjects. The government cannot appear to endorse the practice of religion, nor appear to disapprove of the practice of religion. The Establishment Clause comes up most often in these areas: Prayer in public school: Public schools cannot make students say a prayer, no matter how generic and nondenominational; public schools cannot begin commencement ceremonies or football games with prayers, even prayers written by students instead of chosen by the school. Students can have religious based clubs, but the clubs cannot be given any special benefit or access not allowed all clubs. Religious displays on public property: Christmas and Hanukkah displays on public property are frequently challenged on Establishment Clause grounds. Judges do not agree on all the details, but displays that celebrate a cultural diversity are generally okay, while purely religious single religion displays are not (there is a difference, for example, between a cross and a Christmas tree). Decisions usually depend on the specific facts of each case. Tax laws: The federal tax laws give exemptions to charitable organizations, including houses of worship. The Court rejected a claim that this exempt status showed government favoritism toward religion. All charitable taxexempt groups are supposed to stay out of political activity. They cannot campaign for any candidate and cannot engage in much lobbying for specific policies. The Court has said this restriction does not interfere with the practice of religion The Establishment Clause was incorporated into the Due Process Clause in the case of Everson v. Board of Education. In that case, the Court held that New Jersey could reimburse private school parents the costs of transportation to school.

The Free Exercise Clause

Congress cannot interfere with any person practicing his or her religion. Citizens should be able to carry out their religion freely, without interference from the government. Governments cannot pass laws targeted at specific religions. For example, the city of Hialeah, Florida banned ritual animal sacrifice but the law had many exceptions, including for kosher slaughter. The court said the law was not neutral-instead it was aimed squarely at the Santeria religion (Church of the Lukumi Babalu Aye v. City of Hialeah) and therefore not allowed There are limits, even to such a plain statement as the free exercise clause. You cannot break the law and justify your action on your religion. You cannot marry more than one spouse, even if your religion requires it. Conduct can be regulated (Reynolds v. United States) You cannot justify drug use on the requirements of your religion. (Employment Division of Oregon v. Smith). At the same time, you may collect unemployment benefits if you cannot take a job because it requires you to work on your Sabbath. (Sherbert v. Verner)
The Free Exercise Clause was incorporated into the Due Process clause in the case of Cantwell v. Connecticut. In that case, the Court ruled that Connecticut could not require Jehovahs Witnesses to register for a solicitors license before going door to door. The license would only be given to bona fide religious groups. The court said the government could not judge whether a religion was bona fide or not