12/9 Notes- Period 4

FREE EXERCISE CLAUSE
Contemporary interpretation of the free exercise clause of the 1st amendment protects religious beliefs but not actions based on those beliefs
Supreme Court held the 1st amendment protects religious observance and beliefs. Introduces strict scrutiny standard.
1990- Court refused to grant Native American Church exemption from Oregon law which made it illegal for the possession of peyote, a hallucinogenic drug

FREEDOM OF EXPRESSION CLAUSE
According to the dominant view, the freedom of expression clause confers on the individuals’ right to unrestricted discussion of public affairs, as long as public order is not directly threatened
Founder meant no prior restraint or censorship before publication- meant publisher can’t claim 1st amendment protection if they break the law

FREE SPEECH CASES
Schende v. US (1919)
Schende arrested under a federal criminal law for attempting to disrupt WW1 recruiting
Justice Oliver Wendell Homes articulate the clear and present danger test- subjective, if it presents danger to security of US, not protected
Gitlow v NY (1925)
Convicted under state law for disturbing a left-wing manifesto calling for establishment of socialism
For the first time the court assumed/ruled that the 1st amendment applied to state government law by extension of the 14th amendment’s due process clause- called incorporating the Bill of Rights
Gitlow’s conviction upheld but 2 justices dissented arguing that there was no clear and present danger
Dennis v. US (1951)
Several communist party members convicted under Smith Act which made advocating force or violence against the US a criminal offense
No evidence presented to more claims that the communists had actually urge people to commit violent acts
Court upheld conviction but justices couldn’t decide on rationale- vote went 5-4
Brandenburg v. Ohio (1969)
KKK leader convicted under state law for advocating racial strife
Court overturned conviction and extended limits of free speech
Court held threatening speech was protected by 1st amendment unless government could prove that speech would imminent lawless action and incite action
Today most speech is protected because angry, threatening speeches are really not likely to incite, imminent lawlessness

SYMBOLIC SPEECH
Tinker v Des Moines Independent County School District (1969)
Court overturned suspension of 3 students who wore black armbands to protest Vietnam War
Cohen v. California (1971)
Court recognized the “one mans vulgarity is another lyric” by protecting 2 elements of speech: expression of emotion and ideas
US v. Eichman (1990)
Court reaffirmed 1st amendment protection for expressions of political ideas, including flag burning
Internet Presents Challenges
Communications Decency Act- declared unconstitutional; court argued internet more analogous to print media and it deserved 1st amendment protection
Intimidating speech and threats not protected until 2001 by US Court of Appeals
Hard for government to maintain order