5.10.11 Complex Litigation

Lemon v. Kurtzman (1971)
3 prong test:
1. Valid secular purpose?
2. Primary purpose to advance/inhibit religion?
3. Danger/risk of excessive government entanglements?

ESTABLISHMENT CLAUSE
Lynch v. Donnelly (1984)
Reynolds v. U.S. (1878) - Poligamy and Mormons
Cantwell v. Conneticut (1940) - Jehovah's Witness soliciting on street
Sherbet v. Verner (1963) - 7th Day Adventist denied unemployment
Lyng v. NW Indian Cemetery (1988) - Sacred forest harvested for timber
Wisconsin v. Yoder (1972) - Amish education after 8th grade
Goldman v. Weinberger (1988) - Yamulke worn in Air Force
Dept. of Human Resources of OR v. Smith (1990) - Peyote smoking by Native Americans
Minnesota v. Hershberger (1990) - Amish buggy safety triangles


Religious Practice:
Religious belief is absolutely protected, no exceptions.
Conduct which is subversive to good order can be controlled and eliminated and prevented.
Government can control religious practice as long as it falls under the concepts below.

Restricting Free Exercise Concepts
1. Does the State have a compelling reason under police powers (health, safety, welfare, education)?
2. Is there a sincere religious principle which will be significantly compromised?
3. Is the restriction an outright prohibition or a mere inconvenience?
4. Is the restriction a legitimate time-place-manner* exercise, or an attack on content?
*when-where-how

"Supreme Court will not interfere with believe, can interfere with practice, and will uphold mere inconveniences."

Speech Restrictions - (1-3= most likely to see on final)
1. Clear present danger - of inciting imminent lawless action.
2. Fighting words - words by their very utterance inflict injury, likely to bring immediate, physical, visceral reaction. Must be directed to an individual.
3. Obscenity - LAPS Test- Lacks literary artistic, political, or scientific value. (Pornography is not necessarily obscene.)
4. False advertising -
5. Defamation
6. Compelling government interest - EX contempt of court, gag orders, closed courtrooms. (6th Amend. trumps 1st Amend.)
EXAM- Stick with the law, Bruce isn't looking for your opinion or a sociological evaluation.

Hugo Black- Absolute constitutional right to say anything, at anytime, to anyone.
(Not anywhere at anytime without consequences.)

Congress shall make no law abridging the freedom of speech.

FREEDOM OF SPEECH
Schenck v. U.S. (1919) - "The first amendment does not give one the right to shout fire in a crowded theater", speech which constitutes a clear and present danger is not constitutionally protected. Danger of what?...
Brandenburg v. Ohio (1969) - ...of inciting imminent lawless action. Teaching does not equal advocacy.
Chaplansky v. New Hampshire (1942) - Jehovah's Witness
Lewis v. New Orleans (1974) - Insult to police
Gooding v. Wilson (1972) - threat to police officer, not fighting words
Cohen v. California (1971) - "Fuck the Draft" written on jacket, not fighting words. "We are often captives outside the sanctity of the home." If you don't like it, stay home.
Jacobellis v. State of Ohio (1964) - "I can't define it, but I know it when I see it."
Miller v. California (1973) - LAPS Test- Lacks literary artistic, political, or scientific value.
N.Y. v. Ferber (1982) - Child pornography is obscene
Valentine v. Christensen (1942) - False advertising
N.Y. Times v. Sullivan (1964) -
N.Y. Times v. U.S. (1971) -
Phelps v. Snyder - Picketing funerals