First Amendment

Episode 10: Marsh v. Chambers

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Photo courtesy New York Times

Photo courtesy New York Times

In 1965, the Nebraska Unicameral legislature hired a Presbyterian minister as its official chaplain to deliver prayers before each session. 15 years later, maverick Nebraska senator Ernie Chambers sued, claiming the practice of paying a minister to deliver prayers before a government body violated the First Amendment's Establishment Clause.

Chambers won in the Eighth Circuit Court of Appeals. But in 1983, the U.S. Supreme Court agreed to review the case, and take up the question of whether legislative prayer, a tradition in the federal Congress and most of the states for over two centuries, created a constitutional problem.

Bypassing precedent set just a decade before, the Court, by a vote of 6-3, upheld the Nebraska chaplain scheme, ruling that the practice of legislative prayer, even when exclusively Christian in substance and compensated with state funds, was part of a unique national history and therefore not unconstitutional. 

Question:  Did the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment?

Answer: No.

Majority:

  • Warren Burger (majority opinion)
  • Byron White
  • Harry Blackmun
  • Lewis Powell
  • William Rehnquist
  • Sandra Day O'Connor

Dissent:

  • William Brennan (w/ opinion)
  • Thurgood Marshall
  • John Paul Stevens (w/ opinion)

Audio sources:

Episode 9: R.A.V. v. City of St. Paul

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In the summer of 1990, several teenagers set fire to a crudely-made cross on the lawn of an African American family in St. Paul, Minnesota. One of those teenagers, known in court documents as R.A.V. because he was a juvenile, was prosecuted under a local city ordinance that prohibited the use of symbols known to around anger, alarm, or resentment on the basis of race. 

R.A.V. appealed, arguing that the St. Paul ordinance, by banning his expressive conduct, violated the First Amendment. He lost in the Minnesota Supreme Court, which ruled that because the ordinance only prohibited so-called "fighting words," it did not violate the free speech clause.

But the U.S. Supreme Court felt differently. Though there is an exception to the First Amendment for "fighting words," the St. Paul ordinance went too far. The Court was unanimous in their judgment, but their reasoning was sharply divided on the question of whether the government has constitutional power to ban so-called "hate speech."

Question:  Is a city ordinance that bans expressive conduct which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," overly broad or impermissibly content-based in violation of the First Amendment free speech clause?

Answer: Yes.

Majority:

  • Antonin Scalia (majority opinion)
  • William Rehnquist
  • Anthony Kennedy
  • David Souter
  • Clarence Thomas 
  • Byron White (concurring in judgment)
  • Sandra Day O'Connor (concurring in judgment)
  • Harry Blackmun (concurring in judgment)
  • John Paul Stevens (concurring in judgment)

Episode 7: Employment Division v. Smith

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In the late 1980s, Alfred Smith and Galen Black were fired from their jobs as drug counselors for using peyote as part of Native American religious services. They applied for unemployment benefits but were denied by the state of Oregon. Smith and Black appealed, arguing that the denial of benefits violated their First Amendment right to the free exercise of religion.

The Supreme Court heard their case in 1989, and in early 1990, ruled against the two men. Writing for the majority, conservative Catholic Justice Antonin Scalia said that carving an exception from uniformly enforced laws (such as drug bans) for religious objectors would make people laws unto themselves and would court societal "anarchy." The First Amendment required no such thing, he wrote.

Not long after the Smith decision, Congress took matters into its own hands, and passed the Religious Freedom Restoration Act in 1993. Since then, the landscape of religious freedom in the United States has been profoundly changed.

Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Answer: Yes.

Majority:

  • Antonin Scalia (majority opinion)
  • William Rehnquist 
  • Byron White
  • John Paul Stevens
  • Anthony Kennedy
  • Sandra Day O'Connor (w/ concurrence only in the judgment)

Dissent:

  • Harry Blackmun (w/ opinion)
  • William Brennan
  • Thurgood Marshall

Episode 2: Texas v. Johnson

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At the 1984 Republican National Convention, a young communist named Joey Johnson marched with a group of protesters through the streets of Dallas. In front of city hall, Johnson set fire to an American flag, and his conviction for breaking a Texas state law against flag desecration began a five-year journey to the United States Supreme Court that became known as Texas v. Johnson.

Texas, and many patriotic Americans, believed it was well within the state's power to punish such profound disrespect for an important national symbol. Johnson and his attorney, Howard Kunstler, argued that such a provocative style of protest was exactly the kind of expression the First Amendment protects.

The Supreme Court, after one of the most memorable oral arguments in its history, agreed with Johnson and Kunstler. But why? Can burning a flag be considered "speech?" And if so, is the state's interest in protecting the very symbol of our nation really not enough to ban a style of protest that very few Americans ever engage in?

This episode of Heightened Scrutiny tackles those questions and more, with clips from news reports of past and recent flag burnings as well as extended excerpts from the Court's highly charged oral arguments. 

Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Answer: Yes.

Majority:

  • William Brennan (majority opinion)
  • Thurgood Marshall
  • Harry Blackmun
  • Antonin Scalia
  • Anthony Kennedy (w/ concurring opinion)

Dissenting:

  • William Rehnquist (w/ opinion)
  • Byron White
  • Sandra Day O'Connor
  • John Paul Stevens (w/ opinion)