Random
Free Exercise
Substantial burden on religion free exercise analyze under strict scrutiny
-compelling
-least restrictive means
If Neutral Law of general application: Apply Rational Basis
-rationally related to legit state interest
Forum Doctrine
Traditional Public Forum: park, road, town square, Shouldn’t restrict except for TMP
Non-public Forum: Only exist because of government (prison, military base), Government can have more restriction here, Gov. can restrict content based here but not viewpoint based
Proving Discrimination
1) disparate impact
2) discriminatory intent
Look at law around speech and ask..content based (viewpoint), or content-neutral...then what analysis...
IF LAW IS CONTENT BASED OR VIEWPOINT BASED, ANALYZE UNDER STRICT SCRUTINY
IF LAW IS CONTENT-NEUTRAL, THEN GOVERNMENT CAN PUT RESTRICTIONS ON FREE SPEECH THROUGH TPM
Establishment Clause: Coercion Test
The coercion test, derived from Supreme Court case law, evaluates whether governmental actions or policies effectively coerce individuals into adopting a particular religious belief or participating in religious activities.
If the law or governmental action applies significant pressure on indivduals as such that could be deemed to “coerce” them into conforming to certain religious practices or beliefs, then the action will be deemed to be unconstitutional. Factors the court can look to to determine if there is coercion is the setting (location), nature of the government action, and vulnerability or characteristics of those participating in the action.
OFFENSE DOES NOT EQUAL COERCION, Look at historical practices and understanding
O'Brien Test Expressive Conduct
When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. The regulations must meet the following requirements: 1) be within the constitutional power of the government to enact, 2) further an important or substantial governmental interest, 3) the interest must be unrelated to the suppression of speech (content-neutral), and 4) prohibit no more than is essential to further that interest. If the regulation passed is not content-neutral, then the regulation must pass strict scrutiny, where the government has a compelling interest and the means are narrowly tailored to achieve the goal.
COUNTER TO THIS IS JOHNSON-NO REASON TO MAKE A LAW FOR FLAG BURNING OTHER THAN TO LIMIT SPEECH/EXPRESSION
Everson v. Board of Education: Transportation Case for Establishment. Why was this deemed constitutional?
1. Law was neutral and did not pinpoint one school (student) over another
2. Money went to parents and parents had Choice, and money did not go to the church
Pickering-Garcetti Test Public Employee
The Pickering-Garcetti test serves as a critical framework for evaluating the First Amendment rights of public employees regarding their speech. By distinguishing between speech made in an official capacity and speech made as a private citizen, it balances the interests of public employees against the legitimate government interests in the workplace.
-speech made during official duty--NOPE
-Speech made not in official, Do pickering balance test to weigh EE's interest in speaking against the ER's interest in maintaining order
Central Hudson Test Free Speech