I. Freedom of Speech and Expressive Association 1. Incitement
Basic Rule: Brandenburg v. Ohio1. directed to inciting or producing
2. imminent lawless action
3. and is likely to incite or produce such action.
"imminent" probably means within hours or at most several days, but excludes advocacy of illegal action at some indefinite future time.
Abrams v. U.S. Overbreadth DoctrineThe catch is that even if your speech rises to the level of incitement, if the statute is unconstionally overbroad in its language, it can be argued not to apply even if you own speech would otherwise be unprotected.
2. ThreatsKey issue is "intent to put victim in fear".
Lack of protection based on the threat doctrine is premised on the actual possibility of harm, but is rather designed to protect from the FEAR of harm.
Doctrine centers on the notion of "true threat". What is a true threat? how do we define it? Someone must bear the burden of the imprecise nature of the test used to identify a true threat. It will either be sensitive hearers or aggressive speakers.
Context of the speech matters. i.e., nuremburg files: release of "wanted" poster in the past had been liked with the impending murder of the doctor in question.
Watts v. United States NAACP v. Claiborne HardwareSocially coercive threats of ecnomic loss or social ostracism do not constitute true threats. It's okay to use powerful rhetoric in many situations.
Planned Parenthood v. American Coalition of Life Activists 3. Obscenity1. The [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest, and
2. The work depicts or describes [a] in a patently offensive way ([b] under contemporary community standards), [c] sexual conduct specifically defined by the applicable state law, and
3. The work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value.
Subsidiary Rules:
1. While distribution and even transportaion of obscene material may be outlawed, private possession at home may not be. Stanley v. Georgia.
2. The phrase "appeals to the prurient interest" is limited to appeals to a "shameful or morbid interest in sex"; appeals to "normal" interests are not included. Brockett v. Spokane Arcades, Inc.
3. "Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient appeal requirement is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. Mishkin v. New York.
4. The serious value prong looks to whether a "reasonable person would find [serious] value in the material", not whether an ordinary member of any given community would find such value. Pope v. Illinois.
5. A defendant can be punished only if he knows (or, possibly, has reason to know) the contents of the material. Reasonable ignorance is a defense. Smith v. California; not clear whether negligent ignorance is a defense.
6. A defendant need not know that the material is actually obscene, — mistake of law is no defense. Hamling v. United States.
7. Government may also bar people from
selling to customers who they know to be minors
Material that fits a special "obscene as to minors" test — essentially the same standard as the Miller standard, but with "as to minors" added to each prong.
Miller v. California Paris Adult Theatre I v. Slaton 4. Child Pornography1. It visually depicts children below the age of majority
2. Performing sexual acts or lewdly exhibiting their genitals. Ferber v. New York.
THUS:
a. It does not matter whether the speech meets any of the prongs of the Miller test. (Ferber)
b. Something can be pornography about children, or pornography that people think is harmful when shown to children, or pornography that urges people to go out and harm children without being child pornography.
Subsidiary Rules:
1. Osborne v. Ohio: Private possession of child porn may be outlawed.
2. A defendant may only be punished if he knows (or, possibly, has reason to know) that the material that he distributed or possessed involved an underage performer. A reasonable mistake of fact is a defense.
5. Hate Speech Fighting Words1. It tends to incite an immediate breach of the peace by provoking a fight; (Chaplinsky v. New Hampshire)
2. The speech is individually addressed to the person who's insulted (Gooding v. Wilson).
3. Possible Limitation: This exception might be limited only to "epithets or vulgarities....utterances that are no essential part of any exposition of ideas, and are of slight social value as a step to truth".
Goal is to prevent violence, not to prevent hurt feelings. Imminent violence is the harm.
Inherently Injurious Speech1. It, by its very utterance inflicts injury (Chaplinsky).
2l Limitations: some very offensive speech is indeed protected. See Cohen, Hustler. No cleear rules exist to identify the boundaries of what's protected and what's not.
You can argue based on Chaplinsky that this doctrine is limited only to "low value speech".
Intentional, Knowing, or Reckless Infliction of Severe Emotional Distress1. It intentionally, knowingly or recklessly inflicts
2. Severe emotional distress
3. Through outrageous means. (Ones that offend generally accepted standards of decency or morality),
4. on a private figure (or on a public figure, outside the context of public debate)
5. Potential for unprotected speech under this doctrine (IIEED) has not been definitively decided by the Court; it merely reserved the question in Hustler.
Other Possible Exceptions2. May in some situations be restrained in order to protect a "captive audience", but Court has shied away from holding this squarely.
6. Commercial Speecha. Generally, speech that proposes a commercial transaction (Bolger v. Youngs Drugs Products)
b. Speech is not made commercial by the fact that it's sold. (newspapers, books).
c. Speech is not made commercial by the fact that it's labeled an advertisement.
d. Speech is not made commercial by the fact that the speaker has an economic motivation. (Virginia State Board of Pharmacy: contestants in labor dispute are economically motivated, but we allow them to speak).
e. Speech that indirectly promotes the speaker's product may be commercial speech even if it doesn't specifically offer a product for sale (Bolger),. It's not clear where we draw the line.
Black Letter Law2. Misleading commercial advertising can be punished (misleading political speech cannot be).
a. Courts scrutinize with some care claims that a particular kind of speech is inherently misleading.
b. Among other things, while "actually or inherently misleading advertising may be prohibited entirely, the government may not place an absolute prohibition on certain types of potentially misleading information...if the information also may be presented in a way that is not deceptive.
c. Government may generally require disclosures aimed at keeping customers from being misled.
3. Commercial advertising concerning unlawful activities may be punished, even if it doesn't rise to the level of incitement.
4. Other commercial advertising may be restricted if:
a. the restriction is justified by a substantial government interest
b. the restriction directly advances this interest
c. the restriction is not more extensive than necessary to serve the interest.
With regard to sub-element c: We're looking or "fit" of means to end. Central Hudson: prophylactic rules that end up suppressing some speech that may prove harmless are not permissible when the harmful speech is identifiable up front.
Central Hudson v. Public Service CommissionCourt said that there were other options available, less limiting on the utility's right to advertise.
Key: emergence of/transition to "intermediate scrutiny" standard with means/ends analysis.
7. First Amendment Procedure / Strict Scrutiny A. Vagueness and Overbreadth Basic Rule on Vagueness2. On the other hand, some fairly vague definitions have been upheld: see the definitions of obscenity, copyright infringement, fighting words, and indecency.
3. The rules are more relaxed when the government is acting is acting as a subsidiser (NEA v. Finley), when it's acting as an employer (Waters v. Churchill), and possibly in other areas.
4. Meaning of statute is determined by the construction of courts as well as the language. If course have construed the terms of a vague law in a clarifying manner then a court considering a vagueness challenge must look to the terms of the statute as construed by previous courts, not just as written. Furthermore, a court faced with vagueness challenge may itself create a clarifying construction and uphold on that basis, so long as the construction is not "unexpected" or "unforeseeable". Marks c. United States.
Basic Rule on Overbreadth Important Limitations on Overbreadth Doctrineb. As with vagueness, the question is what's covered by the law as construed by the courts.
c. overbreadth must relate to noncommercial speech.
Grayned v. City of Rockford Reno v. ACLU B. Prior Restraintsask exactly what sort of speech is being restricted, and how this restriction would be treated under the rules we've learned before. Use the following framework:
1. If a prior restraint isjustified by the communicative impact of the speech, then the analysis is much like that for standard content-based restrictions.
a. If the speech restrained falls within an exception to protection, the restriction is valid. Permanent injunctions of unprotected may thus be permissible.
b. If the speech restrained falls outside an exception — and is thus presumptively constitutionally protected — then the restriction must pass something like strict scrutiny.
2. If a government actor has unconstrained discretion to deny a permit, or to delay issuing the permit, then the restriction is unconstitutional because of the danger of content-based denial or delay.
3. If a prior restrained is justified by the noncommunicative impact of the speech, and the scheme isn't unacceptably discretionary, then we have something not much different from a content-neutral statute, and the law must be judged under the time, place and manner standard. (Hence, a ban on unlicensed demonstrations may be upheld if it's narrowly tailored to the important interest of the state).
New York Times v. United States C. Strict ScrutinySuppression of core protected speech is allowable if the suppression is:
1. Intended to further a "compelling state interest", and;
2. Is narrowly tailored.
a. advances the interest.
b. not overinclusive
c. least restrictive alternative
d. not underinclusive.
Content Discrimination within the exceptions to protectionExceptions:
1. An extra content discrimination within an unprotected category is exempt from strict scrutiny when the basis for the extra discrimination consists entirely of the very reason the entire class of speech at issue is proscribable. (example: maybe when a city specifically proscribes obscene material of a particular content: obscenity in general is proscribable so the statute is ok).
2. An extra content discrimination within an unprotected category is exempt from strict scrutiny when the subclass happens to be associated with particular secondary effects of the speech so that the regulation is justified without reference to the content of the speech. (example: a state could, for example, permit all obscene live performances except those involving minors). Emotive impact of speech is not a secondary effect.
D. Speech, Campaigns, and Money 8. Intermediate Scrutiny 1. Content-Neutral Speech Regulations Black LetterRestrictions on time, place and manner of speech are permissible if they:
1. are justified without reference to the content of the speech (i.e., are content-neutral),
2. Serve a substantial government interest,
a. most interests quality: for instance, preserving residential privacy, preventing excessive noise, preventing traffic tie-ups, etc.
3. Are narrowly tailored to serve this interest.
a. This is not the same narrow tailoring we see in strict scrutiny analysis, but a weaker form.
b. the law may not burden a substantial amount of speech that doesn't implicate gov'ts interest.
c. may not impose a burden on speech that's disproportional to the degree to which the speech implicates gov'ts interest, BUT
d. the law need not be the least restrictive means
e. underinclusiveness is probably not a problem.
4. Leave open ample alternative channels for communicating the information.
a. a proposed alternative channel may be rejected by a court as inadequate if it's too exepnsive.
b. a proposed alternative channel may be rejected by a court as inadequate if it is unlikely to reach pretty much the same audience.
c. a proposed alternative channel may be rejected by a court as inadequate if it is likely to implicitly carry a significantly different message from the one that the speaker prefers.
Court has never provided any clear lines to explain how "ample" is ample enough.
Managing the Side-effects of speechb. so long as ample alternative channels are present, the restriction doesn't really ban speech, only reroutes it into other, pretty much as effective forms of communication.
time/place/manner restrictionsIf law imposes only an insubstantial burden - by closing only one channel but leaving open ample alternatives - then the law must pass a sort of intermediate scrutiny where it must serve a substantial interest and must not restrict more speech than necessary.
2. Restrictions on Expressive Conduct Basic RuleThreshold inquiry: An exemption is possible only if the conduct is expressive — if:
a. it intends to convey a particularized message
b. and the likelyhood is great that the message would be understood by those who viewed it.
Texas v. Johnson
OR
c. It is within a traditionally protected genre such as painting, music, poetry, or a parade.
Test: If that preliminary requirement is satisfied then the law may be applied to the conduct only if the law:
a. Is justified without reference to the communicative impact of the conduct (is content neutral)
Inquiry: does the conduct endanger the government interest because of the message that it communicates? If so, then the law cannot be applied.
b. law must serve significant governmental interest
c. AND must not burden a substantial amount of expressive conduct that doesn't implicate the interest or be disproprtional to the degree that the conduct implicates the interest.
9. Forum Analysis: Private Speech on Public Property Public Property is divided into four categories 1. The Traditional Public ForumHere, the test is the same as when the government is acting as sovereign. (Strict scrutiny).
ISKCON v. Lee
2. The Designated Public ForumThe property might have been created only for the use of certain groups or for the discussion of certain subjects. (Perry Educuation Assoc. c. Perry Local Educator's Ass'n).
The test is the same as when the gov't is acting as sovereign ("strict scrutiny"), BUT
the government may limit the forum to the purpose for which it was created.
government may close the forum whenever it wants to.
ISKCON v. Lee
3. Nonpublic Foruma. Regulation must be reasonable:
• restriction must be consistent with the gov't's legitimate interest in preserving the property for the use two which it is lawfull dedicated. Perry.
• government need not show conclusive proof that the speech would interfere with govt's activities, but there must be some evidence.
• this is a more demanding test than the rational basis test, but not clear how much more demanding.
• Regulation is reasonable if the speech carried on by plaintiffs as well as other similarly situated groups would interfere in some measure with the state's interest. ISKCON v. Lee.
b. And must be viewpoint-neutral.
c. On some gov't property, such as military bases and prisons, the government may have even broader authority.
4. Not a Forum at All Policy: page 421. ISKCON v. LeeHeld: where gov't acts as a proprietor or manager managing its own internal operations, rather than as a lawmaker, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject.
In a nonpublic forum, regulation must only be reasonable, and viewpoint-neutral.
10. Government-Funded Speech / Forum Analysis Basic Rules2. Government has largely unlimited power to control what is said in its official organs, or in organs that it officially endorses, even if if this control is expressed in a viewpoint-based way.
3. the government may also communicate its message by contracting the communication out to private parties; if so it may require that money which it distributes be used only for the speech that it wants communicated.
- this is limited to situations wehre the program is genuinely designed "to promote a governmental message" rather than just to facilitate private speech.
4. However, the governmentmay not imposee conditions on how subsidy recipients spend money they get from other sources. FCC v. League of Women Voters. A speaker that's partly subsidized by the government may not be barred from using even wholly private funds to finance its editorial activity.
5. Government may not impose viewpoint-based restrictions when it creates a program to encourage private speech that indiscriminately encourages a diversity of views from private speakers. NEA v. Finley. For example when it offers a subsidy to any student group that wants to start its own non-school-endorsed newspaper.
these programs may be treated as designated public fora, or at least nonpublic fora where there would still be a viewpoint neautrality requirement.
Rosenberger and Velasquez are the classic examples of this; Rust and Finley are the classic examples of the opposite; when deciding whether a program is seen as constituting "government speech" or "encouraging a diversity of views from private speakers", you should compare and contrast to these cases.
6. What if gov't creates a program to encourage private speech, but the program allocates scarce resource on the basis of a "quality" judgment (e.g. artistic excellence in NEA v. Finley) rather than "indiscriminately to an entire group of speakers"?
- invidious viewpoint discrimination in this context may be impermissible, but the goverment may certainly discriminate in part basedon "decency and respect" and the government may selectively fund a program to encourage certain activities it believes to be in the public interest.
Rust v. SullivanGov't was using the speakers to EXPRESS ITS OWN MESSAGE. The limitation was merely to make sure the funding the government provided only funded activities that were within the scope of the government's stated project. It is allowable.
Rosenberger v. Rectors of Univ. of VAStudents published christian paper, sued claiming the policy violated the first amendment.
11. Compelled Speech Basic Rule- just as lower scrutiny is applicable to restrictions of commerical advertising, so lower scrutiny is applicable to compulsion of speech in commercial advertising, esp. when they are required to prevent tdhe speech from being false or misleading. Zauderer.
- likewise it's likely that the rule is diff. when the government is acting as employer/landlord/subsidizer/etc than when ti is acting as sovereign.
What is considered "compelled Speech"?b. Compulsion to display written material on one's property. Wooley v. Maynard
c. Compulsion to publish something in your newspaper, at least when the compulsion is triggered by the content of other things you've published. Miami herald v. Tornillo.
d. Compuslion to include something in your mailings. PG&E v. PUC.
e. Compulsion Compulsion to iclude in your parade a group carrying signs of their choosing. Hurly v. Irish-American Gay, Lesbian and Bi-Sexual Group.
What is not considered "compelled speech"?- so long as its a content-neutral compulsion,
- and so long as the views are not likely to be attributed to the owner
- and perhaps so long as the property owner is not likely to feel an obligation to respond to the views.
- and so long as the compelled speech won't interfere with the owner's selection and arrangement of his own coherent message. Hurley.
b. Requirements that you say certain things to the government (for example, tax returns, transaction reporting, court testimony) may possible not be treated as compelled speech — but there is no holding on point.
c. The PG & E plurality states that "the commission's order is...readily distinguishable from orders requiring appellant to carry various legal notices. The State is not, however, free to require corps. to carry the messages of third parties, where the messages themselves are biased against or are expressly contrary to the corps.' views.
Anonymity of speech 12. Expressive Associationb. Substantial burdens on the right are generally subject to strict scrutiny.
What qualifies as a substantial burden?ii. A requrement that an expressive association accept members whom it doesn't want would qualify as a substantial burden, if the requirement would substantially interfere with the organization's ability to convey its message. The question of whether there is such a substantial burden is often hotly contested; you'd have to compare and contrast with Roberts v. U.S. Jaycees and Boy Scouts v. Dale.
- Jaycees seems to suggest that the standard is "strict scrutiny", while Boy Scouts suggests that the standard is one of per se unconstitutionality.
iii. Mandated disclosure of an organization's membership lists qualifies as a substantial burden; likewise for mandated disclosure of the groups in which a person is a member or to which a person contributes money. NAACP v. Alabama ex. rel. Patterson.
- Law is unsettled as to whether legislative investigations will pass heightened scrutiny.
- Requirements that contributions to political comapaigns be disclosed have been held to be narrowly tailored to a compelling interest. (Buckley v. Valeo).
iv. Discrimination in employment and government contracting based on group membership qualfies as a substantial burden.
- except where party affiliation is an appropriate requirement for effective performance of the public office involved.
v. Forced contribution of money to a group (other than the gov't itself for taxes) generally qualifies as a substantial burden.
- has been justified under strict scrutiny in some situations: labor unions, bar associations.
Forced Contributions as Burden Abood v. Detroit Board of Ed.Activities funded by these contributions must be "germane" to the mission of the group being funded, but may not fund the group's own political expression.
II. Religion Clause 1. Non-discrimination principle A. No discrimination against religious practices Basic Rules2. No discrimination against religious conduct.
Any discrimination — even punishment of conduct (and not beliefs) — based on religiosity of the conduct must pass strict scrutiny. "The government cannot in a selective manner impose burdens only on conduct movitated by religious belief. Church of theLukumi Babalu Aye v. City Hialeah. For example, even if gov't may ban all killing of certain animals, with no exemption for religious conduct, it may not ban only religious sacrifice of animals.
- applies to both facial discrimination and to intentional discrimination even when done using a facially neutral statute. It does not, however, apply to facially neutral laws that weren't intended to discriminate based on religion, but end up having a disparate impact upon different religious groups.
- best evidence of intentional discrim. is in the text of the statute; if that singles out religion for special burden, intentional discrim. is clear. The court can also find discrim. based on statute's legislative history, or its dramatic over- and under-inclusiveness with respect to any plausible nondiscriminatory interest, thought courts will generally only do so when the evidence is very clear.
- exception: there may be an exception to this where gov't funding programs are involved; there, the government might be required to exclude religious participants from evenhanded funded programs.
Church of the Lukumi Babalu Aye v. HialeahA law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. However, even facial neutrality is not determinative. Free exercise and the establishment clauses go beyond facial discrimination. The clauses will forbid "covert suppression of particular religious beliefs".
B. No discrimination among religions RulesNo discrimination based on religious affiliation. Discrim. based on religious affiliation must pass strict scrutiny. Larson v. Valente.
2.
No discrimination against idiosyncratic beliefs. Government generally may not treat people differently based on whether their beliefs are widely or narrowly held. (Even within the complainant's religion). What matters is not the level of adoption within the religion, but whether the claimant's religious beliefs are sincere. Thomas v. Review Bd.
C. No Discrimination against the irreligious Basic RuleImportant exception: There is an important (but controversial) exception when constitutionally compelled religious exemptions — and possibly even statutorily provided religious exemptions — are involved.
1. When Free Exerc. Clause has been read as requiring exemptions for religious believers, these exemptions have indeed been limited to religious believers. As we'll see, though, this is not very significant by itself, given that the Court no longer reads the clause as generally requiring such exemptions.
2. As to religious exceptions provided by statute, case law is mixed:
a. One one hand, Corp. of Presiding Bishop v. Amos upheld a statutory exemption that benefited only religious groups.
b. On the other, Texas Monthly struck down such religion-specific exemptions.
c. Texas Monthly plurality: A religion-only exemption that isn't madated by the Free Exercise Clause is permissible if:
a. it doesn't impose substantial burdens on nonbeneficiaries while allowing others to act according to their religious beliefs
b. It is designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by free exercise clause.
3. The matter is still more complicated when the issue involves preferences for religiously motivated speech, because such preferences might violate the free speech clause as well as the establishment clause.
Larson v. Valente Welsh v. United States Texas Monthly, Inc. v. Bullock policy review 2. no-endorsement principle 1. As to Government Speech Basic Principle Exception Amplification The issue of "city seals"City of VA Beach - p. 726.
3. No-Religious-Purpose Doctrine Basic Rule- A ban on the teaching of evolution in public schools, Epperson v. Arkansas, and a requirement that they teach creation alongside evolution,Edwards v. Aguillard.
- A requirement that the Ten Commandments be posted in Public schools, Stone v. Graham.
- The authorization of a moment of silence in public schools, where the legislative history suggested that the purpose was specifically to promote prayer, and not just whatever silent meditation the students might prefer. Wallace v. Jaffree.
Limitations2. Accomodating religious objectors by exempting them from generally applicable laws is a permissible purpose, at least so long as the go't decisionmaker does not "abandon neutrality and act with the intent of promoting a particular point of view in religious matters".
Edwards v. AguillardFailed 3-prong Lemon test:
1. Regulation must have a clear secular purpose.
2.
4. No-Coercion and No-Religious Decisions Doctrines A. No Coercion Basic Rule:1. Even pscyhological pressure, at least of the sort involved in the pressure to attend a grad. ceremony and stand and remain silent during a prayer, is sufficient. Lee v. Weisman.
2. The same goes for pressure involved in the pressure to attend a football game at which public, government-sponsored prayers take place. Santa Fe Indep. School Dist.
3. At an abstract level, this rule is uncontroversial. The controversy seems to come in deciding what's coercive and what isn't.
4. Note: for justices who believe that the establishment clause bars any preferences for religion, or any endorsement of religion, this rule might not add much since most coercion already involves some preference or endorsement.
Lee v. Weismanconcurring: coercion not required, but presence of coercion will settle the fact that EC WAS violated.
Scalia dissent: coercion only exists if law requires and punishes failure to engage in religious practice.
Policy: B. No Religious Decision Basic Rule2. Judges and juries may not decide whether religious beliefs are true. United States v. Ballard.
3. Judges and juries may not decide whether religious beliefs are central or otherwise important to a person's or organization's belief system. Employment Division v. Smith.
4. Judges and juries may not decide whether particular religious beliefs or practices are consistent with the teachings of a particular religious doctrine, and they may not interpret religious doctrine in other ways. Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presb. Church.
- Courts may not adminster a provision in a will that leaves property to a church "so long as church maintains fidelity to [certain religious principles]."
courts may interpret the secular terms of wills and other grants using neutral principles of law, and they can also neutrally defer to the decision of the chief decisionmaking body of a hierarchical religion, so long as they don't inquire whether this decision is an unacceptable departure from doctrine, or is somehow otherwise irrational or unfair.
it's not clear wherether there might be some room for courts to inquire whether there was fraud or collusion when church tribunals act in bad faith for secular purposes...pg. 827
5. Judges and juries may, however, decide whether a particular person sincerely holds a religious belief (IE, "conscientious objector"). United States v. Ballard.
5. Public Funds and Religious Institutions Current Basic Rule1. There is no EC problem with religious institutions participating in evenhanded benefit programs, so long as the benefits are not themselves religious (i.e., so long as the benefit is money or secular books or supplies).
2. Two justices take the view that the EC:
a. Prohibits provision of benefits directly to religious institutions (such as schools) unless there's some assurance that the funds will not be used for religious purposes. Example: A program that funds new buildings in all universities, and then lets the universities use those buildings for religious purposes, would be prohibited.
b. Allows the provision of benefits to religious institutions (again, under evenhanded programs that include non-religious institutions) if there is such an assurance.
c. probably allows evenhanded "private choice" funding programs even when these funds end up being used for religious purposes. See Mitchell v. Helms, O'Connor J. concurring, Dictum. Witters v. Washington Dep't of Servs. for the blind., p. 871
d. Justice O'Connor also voted to uphold the program in Rosenberger, even though it was not a private choice program — religious newspapers were directly subsidized, rather than getting funds through private choices of individual students
Everson Lemon v. Kurtzman1. Gov't action must have a secular PURPOSE
2. the PRIMARY EFFECT must neither promote nor inhibit religion.
3. The action must not foster EXCESSIVE ENTANGLEMENT of government with religion.
More Modern Application of Lemon: Witters v. Wash. Dep't of Services for the BlindPasses "secular purpose" prong.
does not excessively entangle.
does the primary purpose serve to promote or inhibit religion?
NO. We just need to make sure the money isn't effectively a subsidy to religious school.
Reasons it's not:
-student gets money for "education", can spend it wherever he wants.Destination of the funding is the result of the genuinely independent and private choice of aid recipient.
- Program is made available generally without regard to the nonsectarion or sectarian nature of the institution.
- doesn't tend to provide greater or broader benefits for recipients who end up spending it on a religious education. The full benefits aren't limited in large part or in whole to students at religious schools.
- recipients have full opportunity to spend the money on wholly secular education.
- nothing indicates that (given that we'll allow the program) any significant portion of the funds disbursed by the program as a whole will flow to religious education.
Rosenberger v. Rector & Visitors of Univ. VAGovernment program here is neutral towards religion.
Zelman v. Simmons Harris - a new test? 6. Accommodation and Exemptions Employment Division v. SmithSC: "we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. If prohibiting the exercise of religion is not the object of the regulation but rather the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.