MVV193K Freedom of Speech and Religion

Právnická fakulta
jaro 2016
Rozsah
0/1. 5 kr. Ukončení: k.
Vyučující
Gordon R. Muir (přednášející), prof. JUDr. Ing. Michal Radvan, Ph.D. (zástupce)
Garance
prof. JUDr. Ing. Michal Radvan, Ph.D.
Katedra finančního práva a národního hospodářství – Právnická fakulta
Kontaktní osoba: Mgr. Věra Redrupová, B.A.
Dodavatelské pracoviště: Katedra finančního práva a národního hospodářství – Právnická fakulta
Rozvrh seminárních/paralelních skupin
MVV193K/01: Po 14. 3. 11:10–12:40 038, St 16. 3. 13:30–15:00 034, 15:05–16:35 034, Pá 18. 3. 9:35–11:05 211, 11:10–12:40 211, Po 21. 3. 13:30–15:00 038, 15:05–16:35 038, Út 22. 3. 15:05–16:35 038
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Goals and Objectives:
A. Introduce students to American concepts of freedom of speech and religion under the First Amendment of the United States Constitution.
B. Review past United States Supreme Court decisions to understand nature and scope of First Amendment freedoms of speech and religion.
C. Help students to better understand the extent to which freedom of speech and religion is protected in the United States under various scenarios.
Osnova
  • I. Universal Declaration of Human Rights, Articles 18 and 19.
  • A. Everyone has the right to freedom of thought, conscience and religion; and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
  • B. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.
  • II. United States Constitution, First Amendment.
  • A. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
  • B. Congress shall make no law abridging the freedom of speech.
  • IV. Brief Overview of Freedom of Speech and Religion.
  • A. Freedom of Speech - can voice opinion using words, symbols or actions.
  • 1. Freedom of speech is not absolute.
  • 2. Core political speech is highly protected since it is purely expressive in nature and serving an important function.
  • 3. Time, manner, and place restrictions must:
  • a. Be content neutral;
  • b. Be narrowly tailored;
  • c. Serve a significant governmental interest; and
  • d. Leave open ample alternative channels for communication. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
  • B. Freedom of Religion.
  • 1. No law can be made respecting an establishment of religion.
  • a. Three-prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971) - if any one of three prongs are violated, the government action is unconstitutional.
  • (1) Entanglement Prong - law must not result in “excessive government entanglement,” taking into consideration where, when and how the religious activity is occurring and if objective outsider would perceive the religious activity as being government-sponsored or approved [reading Bible to start school day - Abington School District v. Schempp, 374 U.S. 203 (1963)].
  • (2) Effect Prong - law must not advance or inhibit religious practice; i.e., does religious activity primarily have the effect of advancing a religion [nativity scene-yes; menorah next to a Christmas tree and a sign saluting liberty-no, because it merely recognize that both Christmas and Hanukkah are part of the same winter holiday season - County of Allegheny v. ACLU, 492 U.S. 573 (1989)].
  • (3) Purpose Prong - law must have a secular legislative purpose; i.e., does religious activity have a nonreligious reason [like monument for the Ten Commandments on Texas Capitol grounds with 16 other monuments all demonstrating the values that Texas settlers possessed - Van Orden v. Perry, 545 U.S. 677 (2005); but see McCreary County v. ACLU, 545 U.S. 844 (2005)(Christianity was the sole common element in display of the Ten Commandments at two county courthouses and there was no other secular or historical connection between the Ten Commandments and other historical documents)].
  • 2. No law can be made prohibiting the free exercise of religion.
  • a. If a law is “neutral” and “generally applicable,” then it usually does not violate the Free Exercise Clause.
  • b. The government must typically have a “compelling interest to refuse to accommodate religiously motivated conduct.”
  • C. First Amendment cases often implicate more than a single freedom identified in the First Amendment.
  • D. State constitutions can afford its citizens greater protections than the United States Constitution.
Literatura
  • See Teacher’s Information for full details
Výukové metody
lectures with discussions, case studies
Metody hodnocení
A. Active class participation.
B. Freedom of religion - written case study analysis by student.
C. Freedom of speech - written case study analysis by student.
Vyučovací jazyk
Angličtina
Informace učitele
Full Case Opinions Can Be Found At:
1. Cornell Legal Information Institute https://www.law.cornell.edu/supremecourt/text/home
2. FindLaw For Legal Professionals http://caselaw.findlaw.com/court/us-supreme-court
3. The Bill of Rights Institute http://billofrightsinstitute.org

Case Studies.

A. Freedom of Religion - The Establishment Clause.
1. Engle v. Vitale, 370 U.S. 421 (1962) - parents of students challenged state law authorizing school district's policy to require each class to recite a prayer at the beginning of each school day.
2. Wallace v. Jaffree, 472 U.S. 38 (1985) - parents of students challenged state law providing for one minute period of silence at the beginning of each day and all public schools for the purpose of meditation or voluntary prayer.
3. Lee v. Weisman, 505 U.S. 577 (1992) - parent of student opposed policy that permitted principals to invite members of clergy to give invocations and benedictions at middle school and high school graduations.
4. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) - students wanted Christian prayer read over public announcement system before every school football game.
5. Everson v. Board of Education, 330 U.S. 1 (1947) - state funds were used to reimburse parents for money expended by them for transporting their children to Catholic parochial school using the public transportation bus system.
6. Zelman v. Simmons-Harris, 536 U.S. 639 (2002) - state funds used to provide educational opportunities (financial assistance) for poor children in a failed public school system by way of school vouchers that allowed parents to choose private or community school that their children would attend.
7. State of Nevada (2015) - cost to educate student in the public school system paid to parents of students being home-schooled or attending private schools, including religiously affiliated schools.

B. Freedom of Religion - The Free Exercise Clause.
1. Wisconsin v. Yoder, 406 U.S. 205 (1972) - Amish families pulled their students out of public school after completing eighth grade because their religion tells them higher education is unnecessary and may even threaten their salvation; parents were convicted for violating state law requiring students attend school until they reached the age of 16.
2. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) - state law required all teachers and students to participate in saluting the flag; religious observances by the Jehovah’s Witnesses considered the flag to be a graven image which they refused to salute.
3. Cantwell v. Connecticut, 310 U.S. 296 (1940); Murdock v. Pennsylvania, 319 U.S. 105 (1943); and Follett v. McCormick, 321 U.S. 573 (1944) - laws impose license and occupation taxes on Jehovah’s Witnesses who sold religious materials through door-to-door solicitations and proselytizing.
4. Braunfeld v. Brown, 366 U.S. 599 (1961) - Orthodox Jewish store owner challenged law requiring stores to be closed on Sunday.
5. Sherbet v. Verner, 374 U.S. 398 (1963) - Seventh-day Adventist discharged by employer because she would not work on Saturday was denied unemployment benefits pursuant to law that required claimant be able to, and available for, work.
6. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) - state law included religiously inspired peyote use within the reach of its general criminal prohibition on the use of that drug and denied unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.
7. The Religious Freedom Restoration Act of 1993 (RFRA) was intended to effectively reverse Smith - government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability unless it is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. City of Boerne v. P.F. Flores, Archbishop of San Antonio, 521 U.S. 507 (1997) (holding that the RFRA was unconstitutional with respect to state and local governments since Congress did not have power to pass the RFRA.
8. Obergefell v. Hodges, (2015) - the 14th Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Consider impact on the following:
a. Impact on clergy or others who refuse to perform same-sex marriages and/or preach against same-sex marriage.
b. Impact on private businesses that refuse to provide goods and services for same-sex wedding ceremonies.
c. Impact on government officials who refuse to issue licenses for same-sex marriages.
d. Impact on religiously affiliated adoption agencies that refuse to place children in marriages with same-sex parents.

C. Freedom of Speech.
1. Tinker v. Des Moines, 393 U.S. 503 (1969) - in 1965 three students were suspended for wearing black armbands to school to protest the United States involvement in the Vietnam War.
2. Bethel School District v. Fraser, 478 U.S. 675 (1986) - in 1983 high school student was suspended for giving a speech to 600 other students nominating another student who was referred to in terms of an elaborate, graphic and explicit sexual metaphor.
3. Guiles v. Marineau, cert. denied, 127 U.S. 3054 (2007) - high school student prohibited from wearing T-shirt that violated the school’s dress code because it criticized President Bush as a chicken-hawk president and accused him of being a formal alcohol and cocaine abuser.
4. Morse v. Frederick, 551 U.S. 393 (2007) - high school student suspended for unfurling a banner at a school-sanctioned in school-supervised event stating “BONG HiTS 4 JESUS” which was regarded as promoting illegal drug use.
5. Virginia v. Black, 538 U.S. 343 (2003) - Virginia state law made it a felony for any person to burn a cross on the property of another, a highway or other public place with the intent of intimidating any person or group.
6. Brandenburg v. Ohio, 395 U.S. 444 (1969) - Ku Klux Klan member was convicted of violating a state law that prohibited advocating the duty, necessity, or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform.
7. Texas v. Johnson, 491 U.S. 397 (1989); U.S. v. Eichman, 496 U.S. 310 (1990) - state and federal law criminalized desecration of the United States flag in a way that the actor knew would seriously offend onlookers.
8. Schenck v. U.S., 249 U.S. 47 (1919) - criminal prosecution against the general secretary of a Socialist party where printed circulars were mailed pursuant to a conspiracy to obstruct the recruiting and enlistment of men for military service.
9. Cohen v. California, 403 U.S. 15 (1971) - individual convicted under state law prohibiting “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct” for wearing a jacket bearing the words “F*** the Draft” in a quarter of the Los Angeles courthouse.
10. University hate speech codes placing restrictions on offensive comments by students and faculty members; recent events at Yale, University of Missouri, and Wesleyan University.
11. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) - motion picture distributor’s license to exhibit film was rescinded pursuant to law that banned motion picture films that were obscene, indecent, immoral, inhuman, sacrilegious, or of such character that its exhibition would tend to corrupt morals or incite crime.
12. Ashcroft v. ACLU, 542 U.S. 656 (2004) - federal law imposed a $50,000 fine and six months in prison for knowingly posting for “commercial purposes” content that is harmful to minors on the Internet, unless access to prohibited materials was restricted by requiring use of a credit card or any other reasonable measure that was feasible under available technology.
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