First Amendment: Religion and Speech

The First Amendment protects the freedoms Americans consider most fundamental. It’s also the source of endless litigation.

Freedom of Religion

The First Amendment contains two religion clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

⚠️ These clauses can tension with each other. Accommodating religion (free exercise) can look like endorsing it (establishment).

The Establishment Clause

Government cannot establish an official religion or favor religion over non-religion.

Engel v. Vitale (1962)

• School-sponsored prayer in public schools violates the Establishment Clause
• Even voluntary, non-denominational prayers are unconstitutional when organized by schools

The Lemon Test (from Lemon v. Kurtzman, 1971)

For decades, courts asked whether government action:

1. Has a secular purpose
2. Neither advances nor inhibits religion
3. Avoids excessive government entanglement with religion

If a law fails any prong, it violates the Establishment Clause.

Recent Shift: The Court has moved away from Lemon toward a “historical practices” approach. In Kennedy v. Bremerton School District (2022), the Court allowed a football coach’s post-game prayers, citing historical tolerance of public religious expression.

The Free Exercise Clause

Government cannot prohibit religious practice.

Wisconsin v. Yoder (1972)

• Amish families can exempt children from compulsory education laws after eighth grade
• The state’s interest in education doesn’t override sincere religious objection

Employment Division v. Smith (1990)

• Generally applicable laws that incidentally burden religion don’t violate the Free Exercise Clause
• Oregon could deny unemployment benefits to Native Americans fired for using peyote in religious ceremonies because the drug law applied to everyone, not just religious users

Impact: This case dramatically narrowed free exercise protections. Congress responded with the Religious Freedom Restoration Act (RFRA), requiring government to show a “compelling interest” before substantially burdening religion.

Freedom of Speech

The most litigated right. Americans love free speech in theory; the boundaries in practice are contested.

What Speech Is Protected

✅ Almost everything. Political speech receives the highest protection.

The Court is deeply skeptical of content-based restrictions (laws targeting speech because of what it says).

Protected speech includes:

• Political advocacy, even of unpopular views
• Symbolic speech (flag burning, wearing armbands)
• Offensive or hateful speech
• Commercial speech (advertising)
• Campaign spending (as “speech”)

What’s Not Protected

Some categories receive no First Amendment protection:

1. Obscenity

   • Material that appeals to prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value
   • (Miller v. California, 1971)

2. Defamation

   • False statements that damage reputation
   • Public figures must prove “actual malice” (knowledge of falsity or reckless disregard for truth)
   • (New York Times v. Sullivan, 1964)

3. Incitement

   • Speech intended and likely to produce imminent lawless action
   • Abstract advocacy of violence is protected; directing a mob to attack someone is not
   • (Brandenburg v. Ohio, 1969)

4. True threats

   • Statements meant to communicate intent to commit violence

5. Fighting words

   • Words likely to provoke immediate violence
   • (This category has been narrowed nearly to extinction)

Key Free Speech Cases

Schenck v. United States (1919): Established the “clear and present danger” test. Anti-war pamphlets could be criminalized during wartime. This case has been largely superseded by Brandenburg’s more speech-protective standard.

Tinker v. Des Moines (1969): Students don’t “shed their constitutional rights at the schoolhouse gate.” Schools can’t punish students for wearing black armbands to protest the Vietnam War unless it causes substantial disruption.

Texas v. Johnson (1989): Flag burning is protected symbolic speech. The government can’t prohibit it based on its offensive message.

Citizens United v. FEC (2010): Campaign spending is speech. Corporations and unions can spend unlimited amounts on independent political expenditures.

Time, Place, and Manner Restrictions

Government can regulate when, where, and how speech occurs without restricting content. A city can require permits for parades without banning any particular message.

Such restrictions must be:

• Content-neutral
• Narrowly tailored to serve a significant government interest
• Leave open alternative channels of communication

Prior Restraint

Government generally cannot prevent speech before it happens. Prior restraint is presumptively unconstitutional. Courts strongly prefer allowing speech and punishing any illegal content afterward.

Near v. Minnesota (1931)

• Established the doctrine against prior restraint
• Even a “malicious, scandalous, and defamatory” newspaper can’t be shut down in advance

Student Speech

Students have First Amendment rights, but they’re limited in schools.

Four key cases:

1. Tinker v. Des Moines (1969)

   • Political speech is protected unless it causes substantial disruption

2. Bethel School District v. Fraser (1986)

   • Schools can restrict lewd or vulgar speech

3. Hazelwood v. Kuhlmeier (1988)

   • Schools can censor school-sponsored speech (like student newspapers) for legitimate educational reasons

4. Morse v. Frederick (2007)

   • Schools can punish speech promoting illegal drug use (the “Bong Hits 4 Jesus” case)

The Takeaway

✅ Religion and speech protections are broad but not absolute

The Court balances individual liberty against government interests, and the boundaries shift over time.

Understanding the First Amendment means knowing:

• The establishment and free exercise clauses (and their tension)
• What categories of speech lack protection
• The key cases that define these boundaries
• How school speech differs from adult speech
• Why content-based restrictions face strict scrutiny

These freedoms define American democracy. The debates about their limits are debates about who we are.