First Amendment FAQ

First Amendment FAQ



Freedom of Speech

School officials cannot pull books off library shelves simply because they dislike the ideas in those books. In Board of Education v. Pico, the Supreme Court ruled that school officials in New York violated the First Amendment by removing several books from junior high school library shelves for being too controversial.

The Court said the First Amendment protects students’ rights to receive information and ideas and that the principal place for such information is the library.

However, in Pico, the Supreme Court also said that school officials could remove books from library shelves if they were “pervasively vulgar.” The Court noted that its decision did not involve school officials’ control over the curriculum or even the acquisition of books for school libraries.

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

Although different scholars view unprotected speech in different ways, there are basically nine categories:

  • Obscenity
  • Fighting words
  • Defamation (including libel and slander)
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes

Some experts also would add treason, if committed verbally, to that list. Plagiarism of copyrighted material is also not protected.

Many students are able to express themselves through what they wear to school; but, more and more teenagers are facing restrictions as school boards across the country adopt more stringent policies.

Some states have passed laws empowering school boards to regulate student dress. For instance, Tennessee has a law allowing school boards to pass policies prohibiting the wearing of “gang-related apparel.” In 2001, Arkansas passed a law requiring school boards to create an “advisory committee” of parents and students to consider whether their local school district should require uniforms. Arizona has a law giving local school boards the power to adopt uniform policies. New Jersey passed a law saying that school boards may adopt a dress code or uniform policy if requested by the principal, staff and teachers, and “if the board determines that the policy will enhance the school learning environment.”

Many courts have upheld dress-code and uniform policies as a reasonable way to instill discipline and create a positive educational environment. Federal appeals courts have recently upheld uniform policies in Texas and Louisiana. The courts determined that the policies were not imposed to suppress students’ freedom of expression but to further reasonable educational objectives.

The Supreme Court has not decided a case involving a challenge to a dress-code or uniform policy.


Freedom of expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship. The First Amendment of the U.S. Constitution protects the rights of individuals to freedom of religion, speech, press, petition, and assembly. Some scholars group several of those freedoms under the general term “freedom of expression.”

Most state constitutions also contain provisions guaranteeing freedom of expression. Some provide even greater protection than the First Amendment.

Freedom of expression is essential to individual liberty and contributes to what the Supreme Court has called the marketplace of ideas. The First Amendment assumes that the speaker, not the government, should decide the value of speech.

Yes, the U.S. Supreme Court ruled in Reno v. ACLU (1997) that speech on the Internet receives the highest level of First Amendment protection. The Supreme Court explained that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. When students use school computers, they are also subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.

It depends on the court and the context. If the student’s speech is deemed to be school-sponsored or endorsed by the school, the student prayer would violate the establishment clause. Some courts have determined that purely student-initiated speech would not run afoul of the establishment clause.

Two federal appeals court decisions show how the courts are divided on this issue.

In October 2000, the 9th U.S. Circuit Court of Appeals rejected a First Amendment challenge brought by students in California who were denied the right to make a religious speech at graduation. The court determined that school district officials reasonably prevented the student’s religious speech to avoid violating the establishment clause. Additionally, in Cole v. Oroville Union High School, the court determined that even “if the graduation ceremony was a public or limited public forum, the District’s refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause.”

However, in May 2001, the 11th U.S. Circuit Court of Appeals refused to strike down a Florida school district policy allowing an elected student to deliver an unrestricted message at graduation. The court in Adler v. Duval County School Board determined that “it is impossible to say that … [the policy] on its face violates the Establishment Clause without effectively banning all religious speech at school graduations, no matter how private the message or how divorced the content of the message may be from any state review, let alone censorship.”


Public school students possess a range of free-expression rights under the First Amendment. Students can speak, write articles, assemble to form groups and even petition school officials on issues. The U.S. Supreme Court has said that students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”

There is a fundamental distinction between public and private school students under the First Amendment. The First Amendment and the other provisions of the Bill of Rights limit the government from infringing on an individual’s rights. Public school officials act as part of the government and are called state actors. As such, they must act according to the principles in the Bill of Rights. Private schools, however, aren’t arms of the government. Therefore, the First Amendment does not provide protection for students at private schools.

Though public school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression. For example, school officials may prohibit speech that substantially disrupts the school environment or that invades the rights of others. Many courts have held that school officials can restrict student speech that is lewd.

Many state constitutions contain provisions safeguarding free expression. Some state Supreme Courts have interpreted their constitutions to provide greater protection than the federal Constitution. In addition, a few states have adopted laws providing greater protection for freedom of speech.

The U.S. Supreme Court has decided several cases involving the First Amendment rights of public school students, but the most often cited are Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988).

In Tinker, the Supreme Court said that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court ruled that Iowa public school officials violated the First Amendment rights of several students by suspending them for wearing black armbands to school.

The court noted that the students’ wearing of armbands to protest U.S. involvement in Vietnam was a form of symbolic speech “akin to pure speech.” The school officials tried to justify their actions, saying that the armbands would disrupt the school environment.

But, the Supreme Court said that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” School officials cannot silence student speech simply because they dislike it or it is controversial or unpopular. Rather, according to the court, school officials must reasonably forecast that student speech will cause a “substantial disruption” or “material interference” with school activities or “invade the rights of others” before they can censor student expression. The Tinker case is considered the high-water mark for student First Amendment rights.

In the 1980s, a more conservative Supreme Court cut back on students’ free-expression rights in Fraser and Hazelwood. In Fraser, school officials suspended a high school student for giving a lewd speech before the student assembly. Even though Matthew Fraser’s speech was part of a student-government campaign, the high court distinguished the sexual nature of the address from the political speech in Tinker.

“Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” the court wrote in its 1986 decision. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

Two years later, the Supreme Court further restricted student free-expression rights in Hazelwood. In that 1988 decision, several students sued after a Missouri high school principal censored two articles in the school newspaper. The articles, written by students, dealt with divorce and teen pregnancy. The principal said he thought the subject matter was inappropriate for some of the younger students.

The students argued that the principal violated their First Amendment rights because he did not meet the Tinker standard — he did not show the articles would lead to a substantial disruption. Instead of examining the case under Tinker, however, the Supreme Court developed a new standard for what it termed school-sponsored speech.

Under this standard, school officials can regulate school-sponsored student expression, as long as the officials’ actions “are reasonably related to a legitimate pedagogical interest.” In plain English, this means school officials must show that they have a reasonable educational reason for their actions. The court broadly defined the school’s authority to regulate school-sponsored expression, writing that school officials could censor material which would “associate the school with anything other than neutrality on matters of political controversy.”

It depends. If the school has by policy or practice turned the school-sponsored publication into a public forum, or a place traditionally open to the free exchange of ideas, then the school has less authority to censor content. However, most school newspapers are not public forums, and because of a 1988 Supreme Court decision, school officials generally have broad leeway to censor school-sponsored publications.

In Hazelwood School District v. Kuhlmeier, the high court ruled that school officials can censor school-sponsored publications if their decision is “reasonably related to a legitimate pedagogical purpose.” This means school officials must show that they have a reasonable educational reason for censoring the material.

The high court gave several examples of material that could be censored based on a reasonable educational purpose, including material that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”

The court went so far as to say that under the Hazelwood standard, school officials could censor school-sponsored materials that would “associate the school with anything other than neutrality on matters of political controversy.”

Student advocates decried the Hazelwood decision as blatant censorship that would lead to a drastic reduction in students’ First Amendment rights. For this reason, several states passed so-called “anti-Hazelwood laws” that grant student journalists more protection. Arkansas, Colorado, Iowa, Kansas, Massachusetts, and Oregon passed such laws after the decision. (California already had a law protecting student journalists.)

Generally, schools may not censor underground student newspapers, because those papers are not school-sponsored. If the underground paper is not distributed on campus, school officials have no legal authority to regulate it.

Even if the papers are distributed on school grounds, the First Amendment imposes limitations on school officials’ ability to censor these publications because of content. Public school officials, however, may impose reasonable time, place and manner restrictions on the distribution of underground newspapers.

There are exceptions to the general rule of “no censorship.” If school officials can show that the publication caused or would likely cause a substantial disruption of school activities, they may be able to limit or even stop distribution. Or if school officials could show that the publication contained true threats, they may be able to restrict distribution.

A pressing issue regarding underground student newspapers is whether school officials have the power to require students to submit the papers for review before they can be distributed on school grounds. Courts are divided on whether such prior review policies violate students’ First Amendment rights, and the Supreme Court has not considered the issue.

Courts are much divided on this issue. Among the federal appeals courts, the 1st, 2nd, 4th, 7th and 8th Circuits have seemed receptive to students’ claims of free-expression rights concerning their hair. But the 3rd, 5th, 6th, 9th and 10th Circuits have seemed unreceptive.

Many cases involving student hair today deal not with length but color. For example, a high school student from Virginia sued his school district in federal court after school officials suspended him for having blue hair. A federal judge reinstated the student, finding a violation of his constitutional rights.

Generally, courts that have found a constitutional issue have ruled along similar lines, claiming that a student’s choice of hair color and style represents either a First Amendment free-expression issue or a 14th Amendment liberty or equal-protection interest. Some courts have even pointed out that regulating students’ hair has a more permanent effect than regulating their dress, because outside of school, they can change their clothes more readily than their hairstyles or color.

Conversely, the courts that have sided with school districts have generally ruled that students’ wearing of long hair “does not rise to the dignity of a protectable constitutional issue.”

Either way, different courts have simply come to different legal conclusions. As a result, students’ rights in this regard largely depend on where they live.

Many books have been subject to censorship, although most are targeted for (a) vulgar or sexually explicit language; (b) “racist” language; (c) gay and lesbian themes; and/or (d) discussions of witchcraft and the occult.

The American Library Association’s Office of Intellectual Freedom keeps track of efforts to censor books and has published a list, “The 100 Most Frequently Challenged Books of 1990-2000.” Books new and old make up the list, from the 19th century classic “The Adventures of Huckleberry Finn,” to the critically acclaimed “I Know Why the Caged Bird Sings,” to the current-day best-selling Harry Potter series.

Maya Angelou’s “I Know Why the Caged Bird Sings” receives complaints for a rape scene and for being perceived by some as “anti-white.” Mark Twain’s “Huckleberry Finn” has been subject to censorship for language deemed demeaning to African-Americans. J.K. Rowling’s hugely popular Harry Potter series draws the ire of some who say it celebrates witchcraft.

School districts should develop policies on how to handle challenges to books and how to ensure that decisions regarding removal of books from the library or the curriculum respect the Constitution and reflect sound educational policy. School officials must also ensure that a book is not removed simply because a concerned parent or special-interest group dislikes its content.


No, a public school may not pick and choose which student groups it wishes to allow. A school would violate the First Amendment if it censored certain student groups on the basis of their viewpoints.

In 1984, Congress passed the Equal Access Act to prohibit discrimination against certain student groups based on their speech. The act was passed to prevent discrimination against student religious groups.

In its 1990 decision Westside Community Board of Education v. Mergens, the Supreme Court ruled that a Nebraska high school violated the Equal Access Act by denying recognition of a student Christian club when it allowed many other noncurriculum student clubs.

The Equal Access Act provides that a “public secondary school has a limited open forum whenever such school grants an offering or an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.”

The act forbids public secondary schools that receive federal funds from denying “equal access” to student groups based on the “religious, political, philosophical, or other content of the speech.” This means that, as the Mergens case demonstrated, a school cannot allow the formation of a chess club and at the same time deny the formation of a Bible club.

Unfortunately, some school districts that do not wish to recognize certain student groups have taken drastic action in order to avoid violating the Equal Access Act. These districts have simply prohibited all student extracurricular groups. A school district in Utah banned all student groups to avoid recognizing a gay-and-lesbian group. Meanwhile, a school district in California banned all student groups in order to avoid recognizing a Christian group.

(For more information on student clubs, see Religious clubs FAQs in the Religious liberty in public schools section.)

No, public school students may not be compelled to recite the Pledge of Allegiance. In its 1943 decision West Virginia Board of Education v. Barnette, the U.S. Supreme Court determined that the First Amendment protects a student’s right not to engage in certain speech. The First Amendment generally prohibits the government from punishing people for engaging in certain speech. In Barnette, the high court extended the reach of the First Amendment to also prohibit the government from compelling speech.

The high court determined that a group of Jehovah’s Witnesses, who objected to the flag salute and mandatory pledge recitation for religious reasons, could not be forced to participate.

In oft-quoted language, Justice Robert Jackson wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

No, you do not have to stand up and take off your hat during the Pledge of Allegiance. In the 1943 case West Virginia Board of Education v. Barnette, the Supreme Court said students who objected to the flag salute and mandatory Pledge recitation for religious reasons could not be forced to participate.

Although Barnette pertains to reciting the Pledge, in the case Lipp v. Morris (1978) the 3rd U.S. Circuit Court of Appeals struck down a New Jersey statute requiring a student to stand during the Pledge as unconstitutional.

As explored in Lipp and Barnette, a fundamental constitutional right is that no government official at any level can force conduct from any citizen regarding an expression of religion, politics, nationalism, or matter of opinion.

No, two courts have held that students cannot be forced to stand while other students recite the Pledge of Allegiance. In Goetz v. Ansell (1973) and Lipp v. Morris (1978), the 2nd and 3rd U.S. Circuit Court of Appeals, respectively, ruled that public school students could not be forced to stand silently while other students recited the Pledge. The 2nd Circuit in Goetz explained: “The alternative offered plaintiff of standing in silence is an act that cannot be compelled over his deeply held convictions. It can no more be required than the Pledge itself.”

Additionally, the 11th Circuit in July 2008 (Frazier v. Winn) found that a “standing at attention” clause in Florida law violated the First Amendment. However, the panel left the rest of the state statute intact, refusing to strike down part of it that allows students to be excused from reciting the Ppledge only by written request of their parent. In October 2009, the U.S. Supreme Court refused to hear an appeal in the case, as had the full 11th Circuit earlier.

Yes, students have the right to pray and discuss religion in school. Public misperception has persisted on this topic since the U.S. Supreme court struck down school-sponsored prayer in the early 1960s. In those decisions, the high court ruled that the establishment clause does prohibit schools from allowing or engaging in school-sponsored prayer or encouraging students to pray.

But the free-exercise clause protects the rights of students to pray on their own time. In fact, singling out student religious speech for punishment would indicate hostility toward religion and violate the basic First Amendment principle that the government may not punish a particular viewpoint.

This does not mean that students have an unfettered right to speak on religious subjects. Students can be punished for interrupting class time for any type of speech. Also, school officials can make sure that students are not speaking to a captive audience or harassing others by overzealously advocating their religious beliefs.

An offended person’s decision not to speak is hardly a reason to suppress the speech of others. Those who find an idea, epithet, literary work or other form of expression offensive can oppose, counteract and perhaps refute it with further speech — not by banning the speech deemed to be offensive.

As Justice Louis Brandeis said in a famous quote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Academic freedom has an institutional and individual component. Academic freedom refers to the right of a university to determine its educational mission free from governmental intervention. This is institutional academic freedom. Academic freedom also refers to the right of an individual professor to teach her or his curriculum without undue interference from university officials. This is individual academic freedom.

The American Association of University Professors in its 1940 Statement of Principles of Academic Freedom and Tenure defined academic freedom as “full freedom in research” and “freedom in the classroom in discussing their subject.” The statement with regard to freedom in the classroom also states that teachers “should be careful not to introduce into their teaching controversial matter which has no relation to their subject.”

Still another aspect of academic freedom refers to the ability of university professors to be able to speak as private citizens without fear of reprisal from their universities or the government. The AAUP’s statement provides: “When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations.”

Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writing. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions. Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of students.

Why shouldn’t public colleges be allowed some say in the type of research done by their professors or the funding sources if a line of inquiry might negatively affect the school?

To allow colleges to restrict a field of research, either by censuring a professor or by limiting funding, would be to suggest that no academic advances should be made in that field. Such an attitude would seem to run contrary to the purpose of institutions of higher education. Where a college blocks a professor’s efforts to research a particular issue, the implication is that the censors fear what might be found.

As government entities, public universities are just as precluded by West Virginia v. Barnette from deciding “what shall be orthodox” as Congress is. That means that although a school administration may question the methodology or classroom performance of a professor, it cannot prohibit a field of inquiry simply because the subject is controversial.

First Amendment advocates say an entire campus should be a free-speech zone because the purpose of a public college or university is to allow and to explore all points of view. Free-speech supporters thus express suspicion that designating zones is a way of limiting and discouraging free speech.

Yes and no. Public universities may not completely prevent students from independently printing and distributing written materials on their campus, but they may impose reasonable time, place, and manner restrictions on their distribution. For example, a school may establish certain places on campus as the proper locations for those wishing to pass out written materials, or they may prohibit distribution at times where it could reasonably block the passage of students to and from classes. But the open spaces of a college campus are generally presumed to be an open forum for the purpose of student expression, including written expression.

Many college campuses continue to deal with the problem of students’ confiscating newspapers to prevent the circulation of stories or ideas that they find offensive. Every year, cases are reported where entire runs of a publication are stolen, depriving the campus of the opportunity to even consider what was published. Unfortunately, very few of these instances have resulted in meaningful punishment of the offenders.

The problem in punishing those who steal papers is twofold. From the legal perspective, it is difficult to successfully prosecute the perpetrators for theft, as the newspapers are distributed free to whoever chooses to pick one (or 1,000) up. Prosecutors in a handful of cases have used charges of criminal mischief and vandalism, in addition to the more conventional theft charges, to secure punishment for those responsible for stealing papers. But the vast majority of such incidents go unheard by courts of law. Some universities have been accused of downplaying the importance of mass newspaper thefts out of fear of further offending various groups.

The Supreme Court spoke to this issue in Brandenburg v. Ohio (1969), in which it held that even those statements (or student groups, in this case) that advocate violation of the law are protected speech under the First Amendment unless they threaten “imminent lawless action.” This principle was tested recently by the 11th U.S. Circuit Court of Appeals in Gay Lesbian Bisexual Alliance v. Pryor, where the state of Alabama passed a statute that prevented state universities from recognizing or distributing funds to student groups that promoted lifestyles prohibited under the state’s sodomy laws. The court found that the GLBA did not promote “imminent lawless action,” and that any statute intended to restrict the group’s otherwise-protected advocacy of a nontraditional lifestyle was inherently unconstitutional.

Suppose a student is taking a drawing class. Part of it involves sketching a nude human body. If a student has a religious objection to observing or drawing unclothed models, he or she might ask to be exempted from that section of the class without damage to the course grade. Such an exemption may or may not be granted.

It stands to reason, under a doctrine established by the U.S. Supreme Court in its 1943 decision West Virginia v. Barnette, that no one may be compelled by a government actor to do something that will violate their conscience. Accordingly, it would seem that the same could be said for students who find religious or moral objections to certain practices normally required in a course of study — that they should be allowed to take on comparable tasks, modified to meet the requirements of their worldview.

A Mormon drama student at the University of Utah recently objected to “taking the Lord’s name in vain” and using “the f-word.” When she asked that she be allowed to change the words in class exercises and plays to which she was assigned, she was informed that her grade would suffer if she did so. In the resulting court case, the federal district court found that she could not exempt herself from the requirements of her studies and that if she desired to avoid those requirements, she had the option of choosing another major. The case has been appealed.

This is called a “heckler’s veto.” The problem with it is that, far from advancing understanding, it inhibits it. Freedom of speech was guaranteed in the First Amendment so that a full range of ideas would be available on matters of public interest. The Supreme Court’s interpretation of the First Amendment as it pertains to public college campuses over the past 80-90 years is derived in part from J.S. Mill’s essay, “On Liberty,” in which he asserted that:

“… the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Students are not allowed to drown out the lectures of a professor in the classroom without disciplinary action, because doing so disrupts the school’s academic purpose. Guest speakers are allowed on campus in order to offer different and broader perspectives, thereby addressing the school’s purpose. So, student speech that would drown out a controversial guest therefore can be prohibited.

However, institutions ideally will not simply silence students wishing to protest against a campus speaker. They may restrict student protesters to an appropriate forum, thus allowing both exercises of free speech to occur.

The California Supreme Court addressed this issue in 1970 in the case of In Re Kay, 1 Cal.3d 930. “Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment. For many citizens such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people.”

The court continued: “‘Disturbances’ of meetings arise in a wide variety of forms; the modern techniques of the ‘politics of peaceful confrontation’ frequently result in a clash of ideological expressions which may, in many senses, ‘disturb’ a meeting. Without doubt petitioners’ conduct in the instant case, including clapping … was ‘closely akin to “pure speech”’” (quoting Tinker v. Des Moines Independent Community School District).

Particularly in situations involving illegal or unethical behavior, the press takes seriously its responsibility to keep the public informed. People want and need to know what is happening on public campuses, especially if they have children attending school or thinking of doing so. As with any important story, reporters will want to learn as much about the people involved or suspected of being involved so that they can assemble the uncontested facts into an accurate picture of the situation. This goal would be served by having access to some of the records protected by FERPA, because the information would help the reporters to understand that situation and the individuals who might be involved. Without access to the government-controlled educational records, pieces are left out of the puzzle.

Such a regulation would probably be OK, as long as the government applied it evenhandedly. On its face, this requirement appears reasonable and does not discriminate against speech on the basis of content or viewpoint.

It has to do with distinguishing between protected freedom of speech and speech that is not protected. Most of the new laws passed by states require that for online communications to be considered “stalking,” they must constitute harassment of a person that places the person in reasonable fear for his or her safety. Courts have upheld stalking legislation that deals with threats because the First Amendment does not protect true threats. But some of the measures go beyond punishing true threats and proscribe “annoying” speech.

Gripe sites are websites providing consumer commentary criticizing the business practices of certain companies. Many cybergriper sites contain parodies of their corporate targets. For example, a consumer who believes that “Business X” engages in unfair business practices might establish a website with the domain name “”

The answer depends on several factors, including whether the gripe site is engaged in commercial use of the target’s trademarked business name, or whether the gripe site owner has bad-faith intent to profit from his or her site.

Businesses targeted by gripe sites have sued under both the Federal Trademark Dilution Act of 1996 and the Anti-Cybersquatting Law of 1998. If the gripe site is consumer commentary of a noncommercial nature, it is less likely to be violation of these federal laws, particularly the Federal Trademark Dilution Act.

Many commentators believe that gripe sites that do not engage in commerce are protected under the First Amendment. Some recent court decisions have upheld this viewpoint.

For example, in Taubman Co. v. Webfeats, the 6th U.S. Circuit Court of Appeals found that a gripe site was “purely an exhibition of Free Speech, and the Lanham Act (the major federal trademark law) is not invoked.” The appeals court explained: “We find that the domain name is a type of public expression, not different in scope than a billboard or a pulpit, and [the gripe site owner] has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.”

The law provides a cause of action for trademark owners if they can establish the following:

1. They own a famous mark (determined by eight factors listed in the law).

2. The defendant is making commercial use in interstate commerce of the plaintiff’s mark or trade name.

3. The defendant’s use of plaintiff’s mark occurred after the mark became famous.

4. The defendant’s use causes dilution of plaintiff’s mark by lessening the capacity of a famous mark to identify and distinguish goods or services.

The law exempts noncommercial use of trademarks. The 9th U.S. Circuit Court of Appeals explained in its 1998 decision in Bally Total Fitness Holding Corporation v. Faber that “commercial use is an essential element of any dilution claim.”

However, some courts appear to take a broad view of what constitutes commercial activity. For example, a federal district court in New York ruled in 1997 in Planned Parenthood Federation of America, Inc. v. Bucci that a radio host and anti-abortion activist who had a website with the domain name engaged in commercial activity for several reasons. These include that fact that the radio host promoted his book on the site, solicited funds for his nonprofit political activism, and designed it to harm Planned Parenthood commercially. The court explained:

Finally, defendant’s use is commercial because of its effect on plaintiff’s activities. First, defendant has appropriated plaintiff’s mark in order to reach an audience of Internet users who want to reach plaintiff’s services and viewpoint, intercepting them and misleading them in an attempt to offer his own political message. Second, defendant’s appropriation not only provides Internet users with competing and directly opposing information, but also prevents those users from reaching plaintiff and its services and message. In that way, defendant’s use is classically competitive: he has taken plaintiff’s mark as his own in order to purvey his Internet services — his website — to an audience intending to access plaintiff’s services.

States take different approaches to allocating time for public comments at public meetings, and courts across the country have provided some guidance on this issue. Most states do not expressly require, via statutes or legal precedent, time for public participation in public meetings, although it has become a customary practice to allow individuals to speak. Often in the case of school board meetings, members of the public are required to provide notice, or to register with the board well before the meeting, to be allowed to make a comment.

The Florida Supreme Court has recognized that public comments in open meetings are important in maintaining an open government. The court has stated that government bodies “should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doan, 224 So. 2d 693,699 (Fla. 1969). Furthermore, the Florida Code expressly provides that members of the public have a right to participate in local government meetings regarding land use, but the comment time can be regulated by the decision-making body. Fla. Stat. § 286.0115(2)(b).

California has a statute that requires public bodies to allow for public comments at meetings. Cal. Gov. Code § 54954.3(a). A California case provides legal precedent for when a public meeting is continued to a later date for some reason. In Chaffee v. San Francisco Library Commission, 115 Cal. Rptr. 3d 336 (Cal. App. 2004), a public meeting was continued to a later date after the meeting body lost its quorum to continue. A California citizen brought suit alleging that the state sunshine laws (or open-meeting laws) required public comments at every meeting of a public body, not just a comment section on each agenda. The California Court of Appeals in the 1st Appellate District held in favor of the public body by holding that public comments are mandated only once per agenda, not once per body meeting. Allowing for public comments at each meeting regarding the same meeting would cause a “surplusage,” the court said.

Some states, such as Wyoming, statutorily make it a right of a public body to prevent willful disruption of a meeting by removing anyone causing a disruption or by taking a recess. Wyo. Stat. § 16-4-406.

The act provides a cause of action to a trademark holder when someone registers a domain name of a well-known trademark — or something very similar to it — and then attempts to profit from it by ransoming the domain name back to the trademark holder or by using the domain name to divert business from the trademark holder to the domain-name holder. Cybersquatters buy up the domain names of well-known companies in the hopes of profiting by selling the online “real estate” back to the trademark holder. Whether a cybergriper violates the anti-cybersquatting law depends on whether the griper has bad-faith intent to profit from the purchase of the domain name.

However, there is no per se commercial-use requirement in the anti-cybersquatting law. As the 9th Circuit recently wrote in its 2005 decision Bosley Medical Institute, Inc. v. Kremer: “Allowing a cybersquatter to register the domain name with bad faith intent to profit, but get around the law by making noncommercial use of the mark, would run counter to the purpose of the act.”

The statute contains a list of nine factors that courts must consider to determine whether someone had bad faith intent to profit. One of the relevant factors is whether the domain name holder, the alleged cybersquatter, had a “bonafide non-commercial or fair use of the mark in a site accessible under the domain name.”

Many commentators have criticized the use of the anti-cybersquatting law to cover true gripe sites developed not to profit but to release critical consumer commentary. For example, law professor Hannibal Travis writes in a 2005 article in the Virginia Journal of Law and Technology that “trademark rights should be limited to policing commercial competition, rather than non-commercial Internet speech.”

Local community standards are difficult to apply on the global medium of the Internet because Web publishers cannot limit access to their sites based on the geographic location of Internet users. For this reason, several U.S. Supreme Court justices expressed their discomfort with applying local standards in determining what material is harmful to minors under the now-defunct Child Online Protection Act (COPA) in Ashcroft v. ACLU (2002).

Justice Sandra Day O’Connor, for example, advocated the adoption of a “national standard for regulation for obscenity of the Internet.” Justice Stephen Breyer reasoned that COPA should be read to include a national standard. Other justices expressed concern about the notion of local community standards, as well.

The U.S. Supreme Court has acknowledged that the protection of minors is a compelling government interest. But, the Court has also ruled that protecting minors does not mean that the government has carte blanche to suppress the free-speech rights of adults and older minors. The problem with filters is that they block too much legitimate, constitutionally protected material. A federal court had ruled that less-restrictive alternatives to filtering exist, so that speech is not banned in such a broad swath. The Supreme Court, however, overturned that ruling.

No, not conclusively. One scholar who analyzed about 200 recent studies of media violence said none provided support for the existence of a cause-and-effect relationship between violent imagery and actual violence. Japanese and Canadian TV programming is more violent than American TV, but those societies have much lower violent-crime rates than the United States.

Courts have generally said that it cannot be restricted without a violation of the First Amendment protection of free speech.

Free-speech advocates warn that “voluntary” programs may seem to come from willing industry participants, but compliance is usually due to significant pressure from lawmakers.

No. Private galleries are private spaces, and gallery owners and curators can show what they like. An artist whose work is rejected by a private gallery cannot legally assert a First Amendment claim.

The U.S. Supreme Court set up a test for obscenity in its 1973 decision Miller v. California. The Court provided three “basic guidelines”:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
  • Whether the work, taken as whole, lacks serious literary, artistic, political, or scientific value

These different guidelines are sometimes called the prurient-interest, patently offensive and serious-value prongs of the Miller test.

The U.S. Supreme Court has indicated that city licensing laws must contain some procedural safeguards in order to guard against censorship. In its 1990 decision FW/PBS v. City of Dallas, the high court said that a licensing scheme for adult businesses must contain two such safeguards:

  • The decision to issue or deny a license must be made within a “specified and reasonable time period
  • There must be the possibility of prompt judicial review in the event that the license is erroneously denied

The most commonly mentioned secondary effects with respect to adult businesses are decreased property values and increased crime. Government officials often argue that adult businesses will reduce the property values of surrounding areas and lead to greater crime. Many courts give a high level of deference to municipal officials when it comes to secondary effects.

However, some studies have actually contradicted the general assumptions that all adult businesses cause adverse secondary effects. For example, a study by the Fulton County (Ga.) police department showed fewer police calls made from adult businesses than from regular bars. Another city-commissioned study from Fulton County showed that property values increased around some so-called gentleman’s clubs.

No. But a city may enact reasonable zoning measures that relegate adult businesses to a certain area or areas of town. Similarly, a city may zone adult businesses by dispersing them throughout a city.

Cities may also pass restrictions that regulate how live entertainment is performed. For example, courts have allowed cities to require nude dancers to wear at least some clothing during their performances.

But a city may not completely prohibit adult entertainment. In its 1981 decision Schad v. Borough of Mount Ephraim, the U.S. Supreme Court ruled that a town in New Jersey could not ban live adult performance dancing within its borders. “By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments,” the high court wrote.

The Supreme Court distinguished between a zoning law that restricted the location of adult businesses and a law that completely prohibited certain types of expressive conduct.

No, telemarketers cannot call consumers before 8 a.m. or after 9 p.m. Telemarketers who do call after these times have violated two federal laws that overlap somewhat — the Telephone Consumer Protection Act, and the Telemarketing and Consumer Fraud and Abuse Prevention Act. Both laws empower either state officials or individuals to sue for abusive telemarketing practices. Complaints can also be filed with the Federal Communications Commission and the Federal Trade Commission.

Generally, yes. However, many states have passed laws regarding telephone harassment. In Tennessee, for example, telephone harassment is committed by one “who intentionally threatens by telephone … to take action known to be unlawful against any person, and by this action knowingly annoys or alarms the recipient” (T.C.A. § 39-17-308(a)(1)). The elements for telephone harassment must be proven beyond a reasonable doubt by the state. While the elements vary slightly from state to state, the prosecution generally must prove that the defendant placed the calls anonymously, repetitiously or at an inconvenient hour; the defendant had no legitimate purpose for contacting the victim; and the defendant’s action somehow alarmed or annoyed the victim.

When the government regulates news racks, it affects a fundamental delivery device by which publishers convey their informative products to the public. Many people purchase or pick up newspapers and commercial handbills from news racks. Racks provide an easy way for many people to obtain these publications. The U.S. Supreme Court has written that news racks “continue to play a significant role in the dissemination of protected speech.”

The FDA doesn’t have absolute control because, as a federal agency, it is bound by the dictates of the Constitution and the First Amendment. Generally, the content of labels is considered to be at least a form of commercial speech that merits a degree of First Amendment protection.

Many supporters feel that the flag is a unique symbol deserving of dignity and respect. To burn this object of veneration is akin to an “inarticulate grunt or roar” that is devoid of any meaningful speech, intended only to enrage others, and undeserving of free-speech protection. The supporters say that when so many other avenues exist for free expression, any burden on the First Amendment is too small to outweigh the desecration of the flag and the memories of the millions who have died for the liberty it represents.

Opponents argue that the government may not prohibit free speech simply because the ideas expressed are objectionable. Cultural and social change would be strangled if protest were limited to issues with which the majority agreed. This principle is not dependent on the medium of expression. Burning the flag is a means of protected speech as surely as picketing, printing leaflets or shouting on a street corner.



In 1991, Congress enacted the Telephone Consumer Protection Act. Part of this act made it unlawful to send unsolicited advertisements to a fax machine without the recipient’s prior permission. However, in 2005 the Junk Fax Prevention Act was signed into law. That act amended the TCPA to allow faxes to be sent to recipients, without prior consent, if there is an established business relationship.

An established business relationship is a prior or existing relationship formed by a voluntary two-way communication between the sender and the recipient. However, the JFPA also allows senders to fax those whose numbers they received from “a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution.” There is no time limit on this exception. So, if a fax number appeared on such a list 10 years ago and a sender obtains that list, they can send faxes to that number without being penalized. If a fax owner never put his or her fax number on any type of list that could be available to the public and has no business relationship with a sender, he or she can sue the sender of the unsolicited fax.

However, some states may have laws regulating faxes sent within their states that are more stringent than the JFPA.

The law was passed by the House of Representatives on Feb. 14, 2002, and by the Senate on March 20, then signed into law by President George W. Bush on March 27. In its final stages before passage, it was also known as the McCain-Feingold bill, named after main sponsors Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. Other key sponsors were Sens. Olympia Snowe, R-Maine, and James Jeffords, I-Vermont. In the House, Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass., sponsored the legislation. The main provisions of the law, which took effect on Nov. 6, 2002, are (1) a ban on “soft money” donations to political parties by individuals, corporations and unions; (2) restrictions on “electioneering communications” — broadcast advertisements close to an election that mention specific candidates by name; and (3) an increase in the limits on donations individuals may make to candidates for federal office.

The Federal Election Commission in 1979 issued a regulation allowing political parties to raise funds for “party-building” efforts — such as voter registration drives and TV advertising. This “soft money” remains outside the normal rules that require reporting the source and amount of donations. It was originally justified as a way for parties to remain viable as entities separate from their candidates. But over the years, soft-money donations from corporations and unions — otherwise barred from making donations — to political parties have skyrocketed. And the national parties have transferred much of the money to state party accounts that are used to influence specific elections. The growth of soft money was seen by reformers as thwarting the purpose of all campaign-finance regulations.

Because of the U.S. Supreme Court’s 1976 ruling in Buckley v. Valeo, all regulations affecting the money used in campaigns must be evaluated with the First Amendment in mind. This is because money used in campaigns, especially the money spent by candidates, directly or indirectly supports the expression of political views. As the Supreme Court said in Buckley, “Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression.” Critics of the new law say it violates the First Amendment by sharply restricting the ability of political parties and other groups to convey their views about issues and candidates in elections.

Those who like the new law say it merely restores the political landscape to the way it was a decade ago, before the use of soft money and electioneering ads became so widespread. In a recent position paper, Brookings Institution scholars Thomas Mann and Norman Ornstein also insist that “no speech is banned by the new law — not a single ad nor any word or combination of words would be muzzled.” Only the source of the funds and the disclosure of the source are affected by the law, they say. In addition, supporters argue that the importance of curbing corruption in the political system outweighs any infringement on expression the law might impose.

The law itself spelled out an expedited process for handling the inevitable legal challenges to the law. A three-judge panel in the District of Columbia held hearings at which evidence of the impact of campaign contributions was introduced. After months of deliberation, the panel issued its ruling in May 2003. The panel, comprised of appeals court Judge Karen Henderson and district Judges Colleen Kollar-Kotelly and Richard Leon, produced more than 1,600 pages of mix-and-match opinions that upheld some provisions of the law but struck down others. Commentators generally agreed that because of its fractured findings and conclusions, the ruling did little to help the Supreme Court as it undertook its own assessment of the law.

Because the panel did not rule until May, the Supreme Court did not take up the issue until after its summer recess. Twelve separate appeals concerning the BCRA reached the Court, but they were consolidated and became known generally under the name McConnell v. Federal Election Commission. The justices, who traditionally do not begin their term until the first Monday in October, convened in early September to consider the case in a rare four-hour session. Some of the top First Amendment and constitutional lawyers in the nation argued in the cases — including Floyd Abrams, Kenneth Starr, Seth Waxman and the current solicitor general Theodore Olson. Following the arguments, the general view was that the justices would try to issue their ruling before the end of 2003, so that the uncertainty over the law would end before the 2004 presidential campaign got underway.

The justices, like the court panel that first assessed the law, was sharply divided. But the five-justice majority did speak clearly and decisively in support of almost the entire law. Justices John Paul Stevens and Sandra Day O’Connor wrote the main opinion, and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer were also in the majority. Citing extensive evidence of the influence of campaign money on legislation and elections, the majority gave deference to Congress in fashioning laws that would prevent companies, individuals and parties from circumventing earlier campaign laws. The majority gave less weight than it usually does to First Amendment concerns, prompting dissenting Justice Antonin Scalia to call it a “sad day” for freedom of speech. Also dissenting in most parts of the decision were Chief Justice William Rehnquist, and Justices Anthony Kennedy and Clarence Thomas. The only major provision of the law struck down was the ban on campaign donations by minors. The Court unanimously agreed that this section of the law unconstitutionally infringed on the speech rights of minors.

Not exactly. In the Pico case, the Court ruled that books could not be removed from a public school library unless they were educationally unsuitable or “pervasively vulgar.” The ruling did not extend to the acquisition of books — leaving schools to decide which books they would purchase.

Not at the federal level, though at least eight bills to regulate spam have been introduced in recent sessions of Congress. (See a list of federal bills.)

More than 20 states, however, have passed laws regulating spam. (See for updated information on states that have anti-spam laws.)

Yes. In most cases, participation in extracurricular activities is considered to be a privilege, not a right. As such, participants may be subject to additional or different rules than regular students. Lower courts and the U.S. Supreme Court have noted that participants in extracurricular sports, by electing to participate, subject themselves to these rules. In 1995, the Supreme Court decided a case in which it upheld drug testing for student athletes. In its opinion, the Court noted: “By choosing to ‘go out for the team,’ [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.” Vernonia Sch. Dist. 47J v. Acton, U.S. 646, 657 (1995)

One fairly recent case highlighting this issue was decided in a U.S. District Court in Missouri. In Hurt v. Boonville R-1 School District Case, No. 02-4267-CV-C-SOW (W.D. Mo. 2002), a high school student was not allowed to play in a basketball game, because he wore his hair in a type of braid called cornrows. This style violated the team coach’s grooming policy. Though calling the rule “stupid and dumb,” the judge deciding the case found no violation of constitutional or statutory rights and said that “high school coaches have discretion and authority to impose additional requirements on student athletes.”

Though the courts have been divided over how to resolve dress-code disputes and have reached different results, there has not been a successful challenge to a hat regulation in public schools. So, a prohibition on wearing hats in school would probably be upheld.

School boards have used a variety of reasons to support policies on uniforms and dress codes. They say standard attire helps lessen peer pressure aggravated by socioeconomic divisions, promote unity of spirit, identify trespassers on school grounds and prevent gang-related violence. These concerns would likely be among the reasons for prohibiting hats in schools, and such rationales have been upheld in many courts.

The one exception schools would probably make would be for religious headwear.

No, public school officials can prohibit students from wearing shirts with profane messages. In its 1986 decision Bethel School Dist. No. 403 v. Fraser, the U.S. Supreme Court wrote: “Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” The Court explained that “schools must teach by example the shared values of a civilized social order.”

Yes. Political committees that are registered with the Federal Election Commission are required to place disclaimers on their public websites. If you send out more than 500 substantially similar emails, each message must contain a disclaimer. (For specific disclaimer requirements, please see this FEC information.)

Yes. Individuals are not subject to the rules and regulations concerning online campaign advertising. An individual may send unlimited personal emails on any political topic. There is no need even to identify yourself, and it is not necessary to state whether or not you have been authorized by a political party in sending the email.

Absolutely, to both. Uncompensated blogging is exempted from any Federal Election Commission regulation in effect today.

Yes. An ad placed on someone else’s Web page for a fee would be considered to be a “public communication” under the regulations. To take this question one step further, paying to place an ad on another’s website may result in a contribution or expenditure. All disclaimer requirements would also apply in this situation.

Yes. You may provide your services to political candidates and committees, as long as you charge the normal and usual fees for your services.

No, the First Amendment does not limit private employers. The Bill of Rights — and the First Amendment — limit only government actors, not private actors. This means that private employers can restrict employee speech in the workplace without running afoul of the First Amendment. Private employees would have to rely on other sources of law (e.g., contract law, tort law or state employment statutes) to seek relief in court.

Public employers also can set rules for employee behavior in the workplace. However, public employers are government actors and are subject to the limitations of the Bill of Rights, including the First Amendment.


Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. When students use school computers, they are also subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.



Freedom of the Press

Courts have long struggled with this seemingly easy question. While no doubt exists that “mainstream” media, such as broadcast stations, newspapers and magazines enjoy the freedom of “the press,” the line gets blurrier in cases involving underground newspapers, freelance writers and pamphleteers. In general, however, courts have defined “the press” so as to include all publishers. The 2nd U.S. Circuit Court of Appeals, for example, has said that First Amendment protections extend to “‘every sort of publication which affords a vehicle of information and opinion.’” von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.) (quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938)), cert. denied, 481 U.S. 1015 (1987).

Unless restricted by a valid prior restraint (which is rare), the news media are free to publish any information or opinion they desire. This freedom, however, does not immunize them from liability for what they publish. A newspaper that publishes false information about a person, for example, can be sued for libel. A television station similarly can be sued if it broadcasts a story that unlawfully invades a person’s privacy. Because such liability can be staggering, most journalists strive to exercise their freedom to publish in a responsible and ethical manner.

A jailed news gatherer can be released for many reasons. Occasionally, the news gatherer will “purge” the contempt by turning over the subpoenaed information. In other instances, an appellate court will uphold the privilege and overturn the contempt order. If the news gatherer demonstrates enough resolve to convince the judge that the information never will be provided and that further jail time is futile, some judges will release the news gatherer. News gatherers also often are released when the proceeding in which they were subpoenaed (the trial or grand jury session) ends, or when the information for which they were subpoenaed is obtained from another source.

No. Under the First Amendment, newspapers and magazines can publish information as they see fit, biased or not. If published information is libelous, the publication can be sued by the person claiming to be libeled. But the federal government does not and cannot regulate newspaper content.

The status of the plaintiff (person bringing a lawsuit) in defamation law is important because there are different legal standards for different types of plaintiffs. The legal standard changes depending upon whether the defamation plaintiff is a private or public figure. Private figures must show that a defendant was negligent, or at fault, in order to prevail. But, so-called public figures or public officials who sue for defamation must meet a higher legal standard. They must show that a defendant acted with actual malice by clear and convincing evidence in order to recover. The courts have defined actual malice as knowing that a statement was false or acting in reckless disregard as to whether a statement was true or false.

This difference in legal standards shows why a significant amount of defamation litigation focuses on whether the plaintiff is a private or public figure. Defamation defendants will often argue that plaintiffs are public figures, while plaintiffs will often contend that they are private figures.

A retraction statute is a law that allows a defamation plaintiff to retract, or take back, a defamatory statement. Retraction statutes vary considerably from state to state in terms of their coverage and net effect. Under many statutes, a plaintiff has to request a retraction within a certain time frame. Then, the defendant must comply in a certain time frame. In many states, if a defendant issues a proper retraction, the defendant can reduce (but not eliminate) the damages they will have to pay. For example, in Tennessee, if a defendant issues a proper retraction, the defendant cannot be held liable for punitive damages. (Punitive damages are damages designed to punish the wrongdoer; they are controversial in some circles, because they go beyond compensatory damages, which are damages designed to compensate the plaintiff for wrongdoing.)

Truth is an absolute defense to libel claims, because one of the elements that must be proven in a defamation suit is falsity of the statement. If a statement is true, it cannot be false, and therefore, there is no prima facie case of defamation. There are numerous jurisdictions (including Florida) that have adopted the substantial-truth doctrine, which offers protection to a defendant of a defamation claim, as long as the “gist” of the story is true.

In the 1964 ruling New York Times v. Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of all statements regarding public officials unless the statement was made with actual malice — “with knowledge of its falsity or with reckless disregard of whether it was true or false.” The Court set a new standard by requiring that a public-official defamation plaintiff show evidence of actual malice by clear and convincing evidence. If the plaintiff is a private person, then only negligence needs to be proven, assuming the defamatory statement was false. However, if the private person wants to recover punitive damages, she must show that actual malice existed, as well.

Generally, the material published must be private information that “is not of legitimate concern to the public.” Its disclosure must also be “highly offensive to a reasonable person.” Material private enough to trigger this tort claim could include disclosure of sexual orientation, medical history, or other personal, private facets of a person’s life. The pressing question in public disclosure of private-facts cases is whether the information is newsworthy or of legitimate concern to the public. Newsworthiness is evaluated by an examination of several factors, including the social value of the disclosed material, the depth of intrusion into personal life, and the extent to which the person is already in public view. Even Louis Brandeis and Samuel Warren, authors of a famous 1890 law review article, “The Right To Privacy,” wrote: “The right to privacy does not prohibit any publication of matter which is of public or general interest.”

Many different types of conduct can cause someone to file an intrusion/invasion-of-privacy lawsuit. Common examples include trespassing on private property without the owner’s consent; installing hidden cameras or other secret surveillance equipment to monitor someone’s behavior; and harassing a person by continually following him.

An example of conduct that was held to be intrusive enough to warrant judicial relief was the case of paparazzi photographer Ron Galella. Galella was relentless in his pursuit of photographs of Jackie Onassis and her children. After a court injunction and appeal, Galella was prohibited from approaching within 25 feet of Jackie O., blocking her movement in any public place and engaging in “any conduct which would reasonably be foreseen to harass, alarm or frighten the defendant.”

A prior restraint is a legal restraint on material before publication. It’s an order that prevents publication.

In theory, the protection against prior restraint applies to all speakers. Practically, however, fewer circumstances exist in which individuals can assert this protection. Moreover, in light of the balancing test suggested in Landmark Communications, a court might be more likely to find that the government’s interest in preventing harmful speech outweighs an individual’s interest in disseminating sensitive information.

As most famously described by Justice Oliver Wendell Holmes in Schenck v. United States, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Other types of speech by individuals also fall outside the protection against prior restraint, including fighting words and obscenity.

“There are two ways in which the government may attempt to restrain speech,” wrote scholar Henry Cohen in “Freedom of Speech and Press: Exceptions to the First Amendment” (Congressional Research Service, 2001). “The more common is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint, i.e., to issue a court injunction against engaging in particular speech,” publishing the Pentagon Papers, for example.”

Not from a First Amendment standpoint. The First Amendment limits what government in its various forms can do to restrict speech. Many individuals are subject to employment or other contracts that limit their right to speak freely. That’s a private matter.

Under FCC rules, broadcast indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” By “contemporary community standards,” the FCC means the standard “of an average broadcast viewer or listener, and not the sensibilities of any individual complainant.”

Some states passed “right of reply” statutes to require newspapers that criticized candidates to give those candidates space to respond. In Miami Herald Publishing Co. v. Tornillo (1974), the U.S. Supreme Court said such statutes violated the First Amendment, because the government cannot compel a newspaper to publish information. “A responsible press is an undoubtedly desirable goal,” the Court said, “but press responsibility is not mandated by the Constitution, and like many other virtues, it cannot be legislated.”

Television coverage is not allowed in federal courts. The state courts have been more receptive to allowing television coverage of trials, but none has recognized a right to broadcast a trial. The courts most receptive to cameras in the courtroom allow judges broad discretion in deciding whether to permit televised coverage.

The Radio-Television News Directors Association and its foundation closely monitor the federal and state rules governing cameras in the courtroom. The foundation posts a state-by-state guide of current law regarding cameras and microphones in courtrooms on its website.

The rules that apply to broadcasters are mainly bookkeeping rules. Broadcasters are required to keep publicly available records of politically related broadcasting requests.

So, as stated in the 2003 Supreme Court decision McConnell v. Federal Election Commission, any request to purchase air time “made by or on behalf of” any “legally qualified candidate for public office” that refers to a “legally qualified candidate” or “any election to Federal office” or a “national legislative issue of public importance” has to be recorded and made available to the public.

The Reporters Committee for Freedom of the Press publishes “The Reporter’s Privilege Compendium,” a state-by-state guide to the privilege. This updated guide is available online.

You can also obtain current information by researching state law in law libraries or through a number of online databases, including

See this compilation, Branzburg v. Hayes, reporters’ privilege & circuit courts.

Gag orders are increasingly common. A survey conducted by the Reporters Committee for Freedom of the Press tracked 43 gag orders in 26 states and the District of Columbia between Feb. 1 and April 20, 2000. Among the Reporters Committee’s findings were:

  • Most of the orders were imposed, even though the trial judge did not conduct hearings to determine whether there were less-drastic means to ensure a fair trial.
  • Eighteen of the 43 orders were imposed in civil rather than criminal cases, including some in cases in which governmental entities were parties.
  • A federal judge in Lubbock, Texas, entered gag orders in nearly all of his cases — a total of 219 cases in two years.

The Radio-Television News Directors Association closely monitors the federal and state rules governing cameras in the courtroom. The foundation posts a state-by-state guide of current law regarding cameras and microphones in courtrooms on its website.

Broadcasters long have maintained that the tools of their trade — cameras and microphones — can be used to cover trials with no more disruption than the pens, notebooks, tape recorders and other materials used by print reporters and sketch artists. Most courts, however, have not been persuaded by this argument. In addition, most courts have taken the view that, as long as television reporters are allowed into the courtroom, they have the same access as print reporters.

Assuming that sidebar conferences and meetings in chambers are not being used to circumvent hearings that should be held in open court, the right of access does not extend to such discussions. Courts that have considered this issue have denied access on the grounds that there is no historical tradition of access to these portions of a trial. These discussions, however, almost always are recorded by the court reporter, and many courts, if asked, will release transcripts of the discussions after the trial.

Anonymous juries were first used in the late 1970s and the early 1980s in trials of drug kingpins and other defendants who posed a special danger to jurors. In those cases and in cases in which there is a high risk of jury tampering, anonymous juries are necessary to protect both jurors and the integrity of the judicial system. Since the mid-1990s, however, judges often have empaneled anonymous juries in cases, including civil cases, in which the only “risk” to jurors is the possibility of being approached for press interviews after the case. Anonymous juries should not be used so lightly, however, particularly because being anonymous almost always suggests to jurors that the defendant is dangerous. An anonymous jury is also often beyond scrutiny, even by the parties in the case. One of the jurors in the anonymous jury seated to hear one of mobster John Gotti’s trials, for example, was a man with ties to organized crime. Many believe this juror contacted Gotti’s attorneys, arranged for a bribe and ensured Gotti’s acquittal. Because of the jurors’ anonymity, neither the prosecutors nor the news media were aware of this juror’s background until after the trial.

The First Amendment provides only the minimum level of constitutional protection. The states are free to provide additional protection under their own state laws, including their state constitutions. This notion of “dual federalism,” envisioned by the Framers, thus provides citizens and others with two important levels of legal protection by which to safeguard our rights.

In criminal libel, the theory is that the damage is to the public rather than to a private individual. Therefore, the state becomes the prosecuting entity against an individual speaker. Presumably, the individual’s libelous statement would have to be deemed serious enough to warrant removing the case from the civil realm. The defamation involved in criminal libel could be of another individual, a public official, a government entity, a group, or even a deceased person.

No. In Sullivan (1964), as well as in Garrison v. Louisiana the same year, the Supreme Court extended some First Amendment protection to some false statements of fact leveled against public officials and public figures. But it did not find criminal libel unconstitutional.

Media “ride-alongs” are allowed up to the point that law enforcement personnel enter a private residence. In Wilson v. Layne, the U.S. Supreme Court in 1999 held that police officers executing an arrest warrant violated the Fourth Amendment when they, without the homeowner’s consent, invited a reporter and photographer inside a home to witness the search for a fugitive. While the Court recognized that the inclusion of media representatives in such cases might serve general law enforcement aims, it held that such goals were insufficient to overcome the privacy protections fundamental to the Fourth Amendment.

The courts haven’t recognized that the news media have any constitutional guarantee of access to any particular scene. However, there are statutory rights in a few states and case law in others that protect press access from unreasonable restriction.

The courts have generally stood behind journalists who act reasonably in trying to get information — but courts have not protected those who blatantly disregard police orders. Courts have recognized under the First Amendment a press privilege to be left alone by the police, so long as the media do not unreasonably interfere with or obstruct police activity or risk their own personal safety. In Connell v. Town of Hudson, for example, a 1990 case in New Hampshire, a federal judge found that a news photographer had a First Amendment right to be at a car accident scene.

It’s the Health Information Portability and Accountability Act, a federal health-privacy law that went into effect in 2003.

No. HIPAA does not regulate what the press can report. But it does limit the kinds of information that hospitals and various government agencies can disclose.

Health care information the news media obtains independently is not subject to HIPAA. It may be published or broadcast freely, subject to any newsroom policies limiting the publication of information about minors or the deceased.

There does not appear to be a case where HIPAA has been used to bar a journalist’s access to a crime or emergency scene. The issue of trespass would be the bigger issue if the incident occurred on private property. (See the FAQ “What rights do journalists have at accident or disaster scenes?”) Having said that, there have been cases of misinterpretation of HIPAA, and there have been instances of law enforcement and fire department personnel saying they can no longer release information once commonly disclosed. This may extend to denying access to a crime or emergency scene.

The Freedom of Information Act applies only to federal government agencies. Although all states have created their own FOI acts, these acts do not apply to the court systems. However, courts have tended to allow a right of access to court files and documents, including court transcripts. The problem that the courts have constantly faced is determining just how far the right of access reaches.

The general rule is that if the public has access to a legal proceeding, then it has the right to access the records of a proceeding, which include court transcripts.

Many states’ websites have instructions for ordering court transcripts. For example, see Connecticut’s Judicial Branch site or Kansas’s Judicial Branch.

Litigants in a trial have the right of access to obtain court transcripts of the trial if the public also has access. However, judges do have the authority to withhold court transcripts from the public and litigants.

An Ohio Supreme Court decision held that the cost of obtaining a court transcript depends on who is making the request. In State ex. rel. Slagle v. Rogers, the state court held that parties to a court proceeding must pay the court reporter $2.50 per page for a transcript. Anyone who subsequently requests a court transcript must pay only 10 cents per page — the standard rate in Ohio for any public record.

Many states have implemented procedures to allow for electronic access to court records. Most have come to the conclusion, through committee studies, that the public should be able to access court records, regardless of the medium in which they are stored.

However, states have realized that there are additional privacy concerns when dealing with electronic access to court records. Many states respond to this issue by allowing electronic access only to nonconfidential court records, as long as certain types of sensitive, personal information are removed from the records. This would include Social Security, credit card and financial account numbers, etc.

Most states have reached the conclusion that electronic access to court records should be provided in a way that is consistent with the fundamental right of public access to court records. States have further concluded that narrowly tailored exceptions to public access are acceptable, as long as states do not make broad categorical limitations as to what the public can request. Almost all states will deny the public’s access to electronic records if the state has an interest in secrecy that outweighs the public’s right of access to a particular document.

Some state courts have also made digital audio recordings of courtroom proceedings publicly available online. The U.S. District Court in Nebraska and the U.S. Bankruptcy Court for the Eastern District of North Carolina were the first to make such recordings available, and several other courts have joined that movement.

In 2007, the Reporter’s Committee for Freedom of the Press conducted a state-by-state analysis of online access to court records.

A blog, or Web log, is generally described as an online journal or diary where individuals can post their thoughts on a subject for the world to see and read. Many, however, disagree over the definition of a blog. Robert Cox, president of the Media Bloggers Association, stated in an interview with the First Amendment Center Online that there is no clear definition of “blogging”: “[The term] is worse than useless, because it is an empty vessel into which people can — and do — pour whatever meaning suits them at the time. … Blogging is writing.”

Just as with any medium of communication, blogging can implicate a variety of First Amendment interests. Some bloggers write material that others may claim is defamatory. There is also a debate as to whether bloggers qualify as journalists or reporters for purposes of reporter-shield legislation. Additionally, a looming question concerns the extent of free-speech protection held by public employees who post blogs on their free time. There is also a debate as to whether bloggers should be subject to campaign-disclosure legislation.

That is a difficult question. Certainly, public employers have authority to prohibit employees from writing their blogs on employer time. The trickier question is whether a public employee can be disciplined for expression created on his or her own time. One theory is that since the expression was created off-duty, then the employer has no control over such content. A key factor could be whether the expression causes a disruption at the workplace. A few courts, for instance, have disciplined employees for racist comments they have made off-duty. This is a developing area of the law that merits close attention.

Yes, newspapers do have a First Amendment right to refuse letters to the editor and ads. Since they are privately owned entities whose editors have editorial control, they are free to promote whatever political, social or economic view they wish.

The U.S. Supreme Court addressed the issue of editorial control and freedom of the press in 1974 in the case Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. This case concerned a Florida political candidate who brought suit against The Miami Herald pursuant to the state’s “right-to-reply” statute after the paper refused to print the candidate’s reply to editorials critical of him. The statute in question required a newspaper to provide equal space to a political candidate to reply to any criticism of the candidate’s personal character or official record printed by the newspaper. The Supreme Court found the statute to be unconstitutional in that it violated the First Amendment right to a free press.

The Court wrote:

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”




Freedom of Religion

Although it has attempted to create standards to differentiate religious beliefs and actions from similar nonreligious beliefs, the Supreme Court has never articulated a formal definition for religion. Given the diversity of Americans’ religious experience since the Constitution was created, a single comprehensive definition has proved elusive.

In 1890, the Supreme Court in Davis v. Beason expressed religion in traditional theistic terms: “[T]he term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.”

In the 1960s, the Court expanded its view of religion. In its 1961 decision Torcaso v. Watkins, the Court stated that the establishment clause prevents government from aiding “those religions based on a belief in the existence of God as against those religions founded on different beliefs.” In a footnote, the Court clarified that this principle extended to “religions in this country which do not teach what would generally be considered a belief in the existence of God … Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”

In its 1965 ruling United States v. Seeger, the Court sought to resolve disagreement between federal circuit courts over interpretation of the Universal Military Training and Service Act of 1948. The case involved denial of conscientious objector status to individuals who based their objections to war on sources other than a supreme being, as specifically required by the statute. The Court interpreted the statute as questioning “[w]hether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is ‘in relation to a Supreme Being’ and the other is not.”

Welsh v. United States represented another conscientious-objector case under the same statute. The Court in this 1970 decision went one step further and essentially merged religion with deeply and sincerely held moral and ethical beliefs. The Court suggested individuals could be denied exemption only if “those beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon consideration of policy, pragmatism, or expediency.”

Following the expansive view of religion expressed in Seeger and Welsh, the Court in its 1972 ruling involving the Amish and compulsory school attendance suggested a shift back, to a more exclusive definition. The majority opinion in Wisconsin v. Yoder indicated that the free-exercise clause applied only to “a ‘religious’ belief or practice,” and “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”

The Court in its 1981 decision Thomas v. Review Board further expressed its reluctance to protect philosophical values. The Indiana Supreme Court had ruled that a decision by a Jehovah’s Witness to quit his job after he was transferred to a weapons-making facility was a “personal philosophical choice rather than a religious choice” and did not “rise to the level of a first amendment claim.” In overturning the Indiana decision, Chief Justice Warren Burger cautiously stated, “[o]nly beliefs rooted in religion are given special protection to the exercise of religion.” The Court found the worker’s actions to be motivated by his religious beliefs.

Few have been satisfied by the Court’s attempts to define religion. Many of the Court’s definitions use the word “religion” to describe religion itself. In other cases, the Court’s explanations seem to provide little useful guidance.

Although outside groups generally have no right to distribute religious materials on campus, flyers from religious groups may be another matter. If a school allows outside groups such as the Girl Scouts to send fliers home with students about programs for youth, some courts have ruled that schools may not deny that privilege to a religious group. *

* See Hills v. Scottsdale S.D. County Pub. Schools, 9th Cir. 2003; Rusk v. Crestview Local School Dist., 6th Cir. 2004; Child Evangelism Fellowship v. Mont. Co. Public Schools, 4th Cir. 2004.

Yes, but only if appropriate constitutional safeguards are in place. Remember, public schools must remain neutral among religions and between religion and nonreligion. For that reason, religious groups must refrain from proselytizing students during any cooperative programs with public schools. Participation or nonparticipation by students in such cooperative programs should not affect the student’s academic ranking or ability to participate in other school activities. In addition, cooperative programs may not be limited to religious groups, but must be open to all responsible community groups.

For more detailed guidelines, see “Public Schools and Religious Communities: A First Amendment Guide,” published by the American Jewish Congress, Christian Legal Society, and First Amendment Center and co-signed by 12 additional educational and religious organizations (1999).

Generally, yes. Although schools are not required to open their facilities to any community group, when they do, all groups — including those with a religious viewpoint — must be treated the same (see Good News Club v. Milford Central School Dist., 2001). In fact, the Supreme Court has ruled unanimously that schools may not discriminate on the basis of religious viewpoint when making their facilities available to community groups during nonschool hours (see Lamb’s Chapel v. Center Moriches Union Free School Dist., 1993).

Schools may, of course, impose reasonable, content-neutral restrictions on the use of their facilities. For example, schools may decide when meetings may be held, how long they may last, whether they may continue during weeks or months when school is not in session, what maintenance fee must be paid, and what insurance might be required.

Some content-based restrictions may also be allowed. For example, schools may probably exclude for-profit, commercial businesses, even though community nonprofits are allowed to use school facilities after hours. They may also limit the use of the facilities to such things as “educational purposes,” but such distinctions may prove difficult to administer, as many groups may claim to meet the stipulated purpose.

Schools should be aware that the imposition of content-based restrictions could raise difficult constitutional questions. For example, the Supreme Court has held in Good News v. Milford that in the case of the Good News Club, a content-based restriction excluding religious worship and instruction amounted to impermissible viewpoint discrimination. School districts should be especially mindful to consult with legal counsel if they decide to draft content-based restrictions.

The Supreme Court has been clear that the simple act of taxation is not in and of itself a violation of either the First Amendment’s free-exercise or establishment clauses. This does not mean, however, that it is impossible for a tax to violate either or both of the First Amendment’s religion clauses. If a tax were targeted in discriminatory ways or became so oppressive that it substantially constrained a religious group’s ability to function, then it could possibly violate the free-exercise clause. Likewise, the administrative details of enforcing a taxation scheme could become so intricate and require so much interaction between the state and a religious organization that a court would find sufficient entanglement to violate the establishment clause, as interpreted through the Lemon test.

Under current constitutional law, the government can impose restrictions on a religious belief or practice, as long as the law in question applies to everyone and does not target a specific religion or religious practice.

Probably not. It is likely that many courts would allow a school to prohibit teachers’ religious garb in order to maintain religious neutrality. The courts may view such garb as creating a potential establishment-clause problem, particularly at the elementary school level.

Pennsylvania and Oregon have laws that prohibit teachers from wearing religious clothing to schools. Both laws have been upheld in court challenges brought under the First Amendment and Title VII, the major anti-discrimination employment law. The courts reasoned that the statutes furthered the states’ goal of ensuring neutrality with respect to religion in the schools.

In the Pennsylvania case, U.S. v. Board of Education, the 3rd Circuit rejected the Title VII religious-discrimination claim of a Muslim teacher who was prevented from wearing her religious clothing to school. The school acted pursuant to a state law, called the “Garb Statute,” which provided: “[N]o teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.”

The teacher and the Equal Employment Opportunity Commission contended that the school should have allowed the teacher to wear her head scarf and long, loose dress as a “reasonable accommodation” of her religious faith. The appeals court disagreed, determining that “the preservation of religious neutrality is a compelling state interest.”

In its 1986 decision Cooper v. Eugene School District, the Oregon Supreme Court rejected the free-exercise challenge of a Sikh teacher suspended for wearing religious clothing — a white turban and white clothes — to her special education classes. The Oregon high court upheld the state law, which provided: “No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.” The court wrote that “the aim of maintaining the religious neutrality of the public schools furthers a constitutional obligation beyond an ordinary policy preference of the legislature.”

The First Amendment Center’s A Teacher’s Guide to Religion in the Public Schools provides that “teachers are permitted to wear non-obtrusive jewelry, such as a cross or Star of David. But teachers should not wear clothing with a proselytizing message (e.g. a ‘Jesus Saves’ T-shirt).”

Yes. Contrary to popular myth, the Supreme Court has never outlawed “prayer in schools.” Students are free to pray alone or in groups, as long as such prayers are not disruptive and do not infringe upon the rights of others. But this right “to engage in voluntary prayer does not include the right to have a captive audience listen or to compel other students to participate.” (This is the language supported by a broad range of civil liberties and religious groups in a joint statement of current law.)

What the Supreme Court has repeatedly struck down are state-sponsored or state-organized prayers in public schools.

The Supreme Court has made clear that prayers organized or sponsored by a public school — even when delivered by a student — violate the First Amendment, whether in a classroom, over the public address system, at a graduation exercise, or even at a high school football game. (Engel v. Vitale, 1962; School Dist. of Abington Township v. Schempp, 1963; Lee v. Weisman, 1992; Santa Fe Independent School. Dist. v. Doe, 2000)

In the 1990 Supreme Court case of Westside Community Board of Education v. Mergens, the Court interpreted a “noncurriculum related student group” to mean “any student group [or club] that does not directly relate to the body of courses offered by the school.”

According to the Court, a student group directly relates to a school’s curriculum only if (1) the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; (2) the subject matter of the group concerns the body of courses as a whole; or (3) participation in the group is required for a particular course or results in academic credit.

As examples, the Court identified three groups that were noncurriculum-related at the Westside schools: (1) a scuba club, (2) a chess club, and (3) a service club. The Court found these groups to be noncurriculum-related because they did not meet the criteria set forth above. Conversely, the French club was found to be curriculum-related since the school regularly offered French classes.

Subject to review by the courts, local school authorities must determine whether a student group is curriculum related or not. Schools may not, however, substitute their own definition of “noncurriculum related” for the definition provided by the Court.

If the school violates the EAA, an aggrieved person may bring suit in U.S. district court to compel the school to observe the law. Although violations of equal access will not result in the loss of federal funds, the school could be liable for damages and the attorney’s fees of a student group that successfully challenges a denial to meet under the act.

Yes. Students are free to share their faith with their peers, as long as the activity is not disruptive and does not infringe upon the rights of others.

School officials possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities. But they may not structure or administer such rules to discriminate against religious activity or speech.

This means that students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activities. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests. Generally, students may share their faith or pray in a nondisruptive manner when not engaged in school activities or instruction, subject to the rules that normally pertain in the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as applied to other student activities and speech. Students may also speak to and attempt to persuade their peers about religious topics just as they do with regard to political topics. School officials, however, should intercede if a student’s speech begins to constitute harassment of a student or group of students.

Students may also participate in before- or after-school events with religious content, such as “See You at the Pole” gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event. Keep in mind, however, that the right to engage in voluntary prayer or religious discussion free from discrimination does not necessarily include the right to preach to a “captive audience,” like an assembly, or to compel other students to participate. To that end, teachers and school administrators should work to ensure that no student is in any way coerced — either psychologically or physically — to participate in a religious activity (see Lee v. Weisman, 1992).

Yes, within limits. Generally, if it is relevant to the subject under consideration and meets the requirements of the assignment, students should be allowed to express their religious or nonreligious views during a class discussion, as part of a written assignment, or as part of an art activity.

This does not mean, however, that students have the right to compel a captive audience to participate in prayer or listen to a proselytizing sermon. School officials should allow students to express their views about religion, but should draw the line when students wish to invite others to participate in religious practices or want to give a speech that is primarily proselytizing. There is no bright legal line that can be drawn between permissible and impermissible student religious expression in a classroom assignment or at a school-sponsored event. In recent lower court decisions, judges have deferred to the judgment of educators to determine where to draw the line. (C.H. v. Olivia, 2nd Cir. 2000)

Yes, if, and only if, the moment of silence is genuinely neutral. A neutral moment of silence that does not encourage prayer over any other quiet, contemplative activity will not be struck down, even though some students may choose to use the time for prayer. (See Bown v. Gwinnett County School Dist., 11th Cir. 1997)

If a moment of silence is used to promote prayer, it will be struck down by the courts. In Wallace v. Jaffree (1985) the Supreme Court struck down an Alabama “moment of silence” law because it was enacted for the express purpose of promoting prayer in public schools. At the same time, however, the Court indicated that a moment of silence would be constitutional if it is genuinely neutral. Many states and local school districts currently have moment-of-silence policies in place.

No, not unless the school has a legitimate civil or secular purpose for limiting activities; it may not curtain programs only to accommodate a particular religious group. Though the U.S. Supreme Court has not ruled directly on this issue, causing some ambiguity, the Court has heard many cases concerning the First Amendment’s establishment clause. From one of those cases came the Lemon test used by the courts to determine if a law runs contrary to the establishment clause. The secular-purpose standard mentioned above is one part of this test, which the Court developed in 1971 in deciding the case Lemon v. Kurtzman. The Lemon test has three parts; first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster an excessive government entanglement with religion. So, for example, if school officials could show that there would be little or no participation in a school activity on a given night due to some religious observance or activity, causing the school to waste school funds, they would probably withstand a constitutional challenge.

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

Yes. The Internal Revenue Service requires that 501(c)(3) nonprofit organizations (a category that includes tax-exempt religious organizations) refrain from partisan politicking if they are to receive tax-exempt status. The U.S. Circuit Court of Appeals for the District of Columbia held in Branch Ministries v. Rossotti (2000) that a religious institution had no affirmative right to a tax exemption and that the IRS was justified in conditioning a church’s tax-exempt status on its willingness to abstain from political advocacy. In 1992, the church took out a newspaper ad to ask Christians to vote against then-governor Bill Clinton because of his political stances, also including a request for donations to the ministry. The court determined that this sort of political advocacy was not central to the church’s religious practice, and therefore restraining from such speech was not a burden on its free-exercise rights.

The government may also condition tax exemptions on compliance with government policies. In the Supreme Court’s 1983 decision in Bob Jones University v. United States, the university’s tax-exempt status was revoked because the school enforced racially discriminatory policies. Questions remain as to whether legislatures or administrative agencies can condition exemptions on an organization’s promise not to discriminate on the basis of religion or sexual orientation, aspects of which might legitimately relate to the organization’s religious beliefs.

They may engage in lobbying activities as long as the lobbying does not form a “substantial part” of their activities. According to the IRS, lobbying is “attempting to influence legislation” and “an organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.” The IRS says it “considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial.” According to the courts, devoting 5% of an organization’s time and effort to political activity is not considered substantial within the meaning of the IRS Code. See Seasongood v. Commissioner.

The U.S. Supreme Court, in Elk Grove Unified School District v. Newdow, stated that “in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.” Consequently, the question at hand has not been dealt with by the Supreme Court or the federal district courts.

The state courts that have handled this issue, for the most part, have not restricted the non-custodial parents from exposing their children to a different religion. The courts will generally steer clear of this issue “except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child” (Munoz v. Munoz, 489 P.2d 1133, 1135 (WA., 1971)).

The ambiguous language from this Washington state case, one of the first to address this issue, has caused other states to interpret what “affects the general welfare of the child” in many different ways. When determining custody, the courts look at and weigh many different factors to determine what is in the child’s best interest. Examples of these factors can include the emotional ties between the parent and the child, the physical and mental health of the parents and/or the ability of the parents to provide for the child’s material needs. Religion may be one of the factors considered, but is generally only considered if it has, or will have, a clear and substantial bearing on the welfare of the child. As various courts have stated, a showing of substantial harm must be demonstrated before a non-custodial parent’s right to expose the child to his or her religion will be restricted.

State courts have struggled to define what constitutes substantial harm. Very few have found demonstrated substantial harm in the cases they have heard. What courts have said, as in Khalsa v. Khalsa, 107 N.M. 31, 36 (Ct. App. 1988), is that “a custodial parent’s general testimony that the child is upset or confused because of the non-custodial parent’s religious practice is insufficient to demonstrate harm [See Felton v. Felton, 383 Mass. 232 (1981); Munoz v. Munoz]. Further, general testimony that the child is upset because the parents practice conflicting religious beliefs is likewise insufficient.” Thus a very strong showing of harm must be presented.

An example of this is the case of LeDoux v. LeDoux, 234 Neb. 479 (Neb. 1990) in which the Nebraska Supreme Court upheld a trial court’s decree ordering the father, a Jehovah’s Witness, “to refrain from exposing or permitting any other person to expose his minor children to any religious practices or teachings inconsistent with the Catholic religion.” When they married and had their children, the LeDouxs were both Catholics. At the time of the divorce Edward Ledoux was a Jehovah’s Witness and insisted that the children be involved in his religious activities. The mother, Diane LeDoux, presented testimony from a clinical psychologist who testified that one of the children was under serious stress and was having a maladjustment problem. The psychologist indicated “that conflicts in the Catholic and Jehovah’s Witnesses religions were an obvious contributing factor to the stress felt” by the child.

After weighing all the evidence, “the trial court concluded that exposing the minor children to more than one religious practice would have a deleterious effect upon the minor children,” and the Nebraska Supreme Court agreed. (Other examples: Funk v. Ossman, 150 Ariz. 578 (Ct. App. 1986), Kendall v. Kendall, 426 Mass. 238 (1997).)

Because a parent’s constitutional right to practice his or her religion freely could potentially be restricted, a showing of substantial harm to the minor children is required. Substantial harm is a high standard and “requires a clear showing that a parent’s religious practices have been or are likely to be harmful to the child” (Kirchner v. Caughey, 326 Md. 567, 576 (Ct. App. 1992)).

In 2002 the Supreme Court ruled in the case of Zelman v. Simmons-Harris that, under certain conditions, communities may create a voucher program for use at a variety of schools without violating the U.S. Constitution, even if some of the vouchers are redeemed at religious schools.

Citing precedent, Chief Justice William Rehnquist’s plurality opinion looked first at the purpose of a voucher program: It must exist for a valid secular purpose and not to promote any particular religion, he wrote.

The Court’s analysis then focused on whether a voucher program advances religion. The justices agreed that a neutral benefit program could be constitutional, even if religious institutions received some of the funds. Arguments occurred over the specifics of what constitutes a neutral program, and whether the funds could go directly to a religious group or if they must pass first through a private individual who would decide how to allocate the resources.

In both the plurality and concurring opinions, a majority of the Court focused primarily on whether or not a government benefit program was neutral on its face in matters of religion. In his plurality opinion in Zelman, Rehnquist said:

“[Previous cases] make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”

What does all of this mean? The Court indicates that communities must consider several factors when creating a voucher program:

1. Is the proposed voucher program neutral with respect to religion? If the plan favors one religion over another, or non-religion over religion, then it will violate the establishment clause of the First Amendment.

2. Will the vouchers be made available to students based on religiously neutral criteria? That would mean deciding who gets a voucher must be based on such non-religious bases as financial need or attendance at poorly performing school, etc. Also, the schools that are allowed or not allowed to receive vouchers must similarly be appraised on the basis of secular criteria, such as academic performance and ability to adhere to safety codes.

3. The voucher must be awarded to an individual, not the religious institution, and the individual must, through private choice, make the decision as to where the voucher is to go. The government cannot influence this decision. This is necessary to demonstrate the government voucher is going to benefit the individual — as opposed to benefiting religion. This last element was by far the most contentious issue for the justices in the Zelman decision.

While all of the above material focuses on whether a voucher program is legal under the federal establishment clause, states must also look at their state constitutions. Most states have their own constitutional prohibitions against providing public funds to religious entities. These restrictions are often more restrictive than the U.S. Constitution.

This issue has come to the forefront in Colorado, where, in May 2003, a group of taxpayers sued the state over a newly implemented voucher program. Many of the arguments are based on Colorado’s constitutional prohibitions against allowing public money to go to religious entities.

Other issues are also involved, many revolving around policy questions and political realities.

Not necessarily. The Court’s holding was based on the fact that Nebraska’s practice did not seem likely to lead to an “establishment of religion.” Given a different set of facts, a majority of the justices might well have discerned such an unconstitutional establishment. For instance, courts are stricter in their application of the establishment clause when it comes to public schools, or other arenas where the government has the opportunity to influence a captive audience of impressionable youngsters. What seems clear from Marsh is that the Court is willing to defer to traditional practices that bear a religious element as long as they do not appear to coerce the unwilling or the highly impressionable into some form of religious participation or belief. The Marsh reliance on tradition and a failure to prove any establishing tendency could make a huge difference if the Supreme Court decides to hear a challenge to the constitutionality of the national motto (“In God We Trust”), or the wording of the Pledge of Allegiance.

Court decisions on the issue generally fall into two categories.

Most courts hold that although schools may place some restrictions on distribution of religious materials by students, they may not ban them altogether. The courts base their decisions on the landmark case of Tinker v. Des Moines School District, which upheld the right of students to wear black armbands protesting the Vietnam War, even in a public school. Included in this right of free speech is not only the right to speak for oneself but also to distribute the writings (i.e., speech) of others. Thus, courts have generally upheld the rights of students to distribute non-school religious literature subject to the school’s right to suppress such materials if they create substantial disruption, harm the rights of other students or infringe upon other compelling interests of the school. Again, the Mergens decision makes clear that the fear of a First Amendment violation is not sufficient justification to suppress a student distribution of material that happens to be religious. Some states, such as California, have incorporated the majority view into their own state education codes.

A minority of decisions hold that schools can prohibit the distribution of any material that is not sponsored by the school. Of course, the ban must be applied even-handedly to all students. A school could not, for example, allow the distribution of political literature while barring religious publications. This is particularly evident in light of the Supreme Court’s 1990 decision in Westside Community Board of Education v. Mergens, upholding the federal Equal Access Act. Under this minority view, however, a blanket prohibition on all student distributions would be permissible.

Yes. The First Amendment applies to all levels of government, including public schools. Although the courts have permitted school officials to limit the rights of students under some circumstances, the courts have also recognized that students — like all citizens — are guaranteed the rights protected by the First Amendment.

Earlier in our history, however, the First Amendment did not apply to the states — and thus not to public schools. When adopted in 1791, the First Amendment applied only to Congress and the federal government (“Congress shall make no law …”). This meant that when public schools were founded in the mid-19th century, students could not make First Amendment claims against the actions of school officials.

The restrictions on student speech lasted into the 20th century. In 1908, for example, the Wisconsin Supreme Court ruled that school officials could suspend two students for writing a poem ridiculing their teachers that was published in a local newspaper. The Wisconsin court reasoned, “such power is essential to the preservation of order, decency, decorum, and good government in the public schools.” And in 1915, the California Court of Appeals ruled that school officials could suspend a student for criticizing and “slamming” school officials in a student assembly speech.

In fact, despite the passage of the 14th Amendment in 1868, which provides that “no state shall … deprive any person of life, liberty or property without due process of law,” it was not until 1925, by way of the Supreme Court case of Gitlow v. New York, that the Supreme Court held that the freedom of speech guaranteed by the First Amendment is one of the “liberties” incorporated by the Due Process Clause of the 14th Amendment.

In subsequent cases, the Court has applied all of the freedoms of the First Amendment to the states — and thus to public schools — through the 14th Amendment. But not until 1943, in the flag-salute case of West Virginia v. Barnette, did the U.S. Supreme Court explicitly extend First Amendment protection to students attending public schools.

The Barnette case began when several students who were Jehovah’s Witnesses refused to salute the flag for religious reasons. School officials punished the students and their parents. The students then sued, claiming a violation of their First Amendment rights.

At the time that the students sued, Supreme Court precedent painted a bleak picture for their chances. Just a few years earlier, the Court had ruled in favor of a similar compulsory flag-salute law in Minersville School District v. Gobitis. As the Court stated in that ruling, “national unity is the basis of national security.”

However, the high court reversed itself in Barnette, holding that the free-speech and free exercise of religion provisions of the First Amendment guarantee the right of students to be excused from the flag salute on grounds of conscience.

Writing for the majority, Justice Robert Jackson said that the Supreme Court must ensure “scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” The Court then warned of the dangers of coercion by government in oft-cited, eloquent language:

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The meaning of the establishment clause, often referred to as the “separation of church and state,” has been much debated throughout our history. Does it require, as described in Thomas Jefferson’s famous 1802 letter to the Danbury Baptists, a high “wall of separation”? Or may government support religion as long as no one religion is favored over others? How can school officials determine when they are violating the establishment clause?

In the last several decades, the Supreme Court has crafted several tests to determine when state action becomes “establishment” of religion. No one test is currently favored by a majority of the Court. Nevertheless, no matter what test is used, it is fair to say that the Court has been stricter about applying the establishment clause in public schools than in other government settings. For example, the Court has upheld legislative prayer (Marsh v. Chambers, 1983), but struck down teacher-led prayer in public schools (Engel v. Vitale, 1962). The Court applies the establishment clause more rigorously in public schools, mostly for two reasons: (1) students are impressionable young people, and (2) they are a “captive audience” required by the state to attend school.

When applying the establishment clause to public schools, the Court often emphasizes the importance of “neutrality” by school officials toward religion. This means that public schools may neither inculcate nor inhibit religion. They also may not prefer one religion over another — or religion over nonreligion.

If school officials are supposed to be ‘neutral’ toward religion under the establishment clause, does that mean they should keep religion out of public schools?

No. By “neutrality” the Supreme Court does not mean hostility to religion. Nor does it mean ignoring religion. Neutrality means protecting the religious-liberty rights of all students while simultaneously rejecting school endorsement or promotion of religion.

In 1995, 24 major religious and educational organizations defined religious liberty in public schools this way:

Public schools may not inculcate nor inhibit religion. They must be places where religion and religious conviction are treated with fairness and respect.


Public schools uphold the First Amendment when they protect the religious-liberty rights of students of all faiths or none. Schools demonstrate fairness when they ensure that the curriculum includes study about religion as an important part of a complete education.

The establishment clause speaks to what government may or may not do. It does not apply to the private speech of students. School officials should keep in mind the distinction between government (in this case “school”) speech endorsing religion — which the establishment clause prohibits — and private (in this case “student”) speech endorsing religion, which the free-speech and free-exercise clauses protect.

Student religious expression may, however, raise establishment clause concerns when such expression takes place before a captive audience in a classroom or at a school-sponsored event. Students have the right to pray alone or in groups or to discuss their faith with classmates, as long as they aren’t disruptive or coercive. And they may express their religious views in class assignments or discussions, as long as it is relevant to the subject under consideration and meets the requirements of the assignment. But students don’t have a right to force a captive audience to participate in religious exercises.

It isn’t entirely clear under current law where teachers and administrators may draw a line limiting student religious expression before a captive audience in a classroom or school-sponsored event. In several recent cases, lower courts have deferred to the judgment of educators about when to limit the religious expression of students in a classroom or school setting. A general guide might be to allow students to express their religious views in a classroom or at a school event as long as they don’t ask the audience to participate in a religious activity, use the opportunity to deliver a proselytizing sermon, or give the impression that their views are supported by or endorsed by the school.

Here are some questions that teachers and administrators should ask themselves when planning activities that may involve religious content (e.g., a holiday assembly in December):

Do I have a distinct educational or civic purpose in mind? If so, what is it? (It may not be the purpose of the public school to promote or denigrate religion.)

Have I done what I can to ensure that this activity is not designed in any way to either promote or inhibit religion?

Does this activity serve the educational mission of the school or the academic goals of the course?

Have I done what I can to ensure that no student or parent may be made to feel like an outsider, and not a full member of the community, by this activity?

If I am teaching about religion, am I balanced, accurate, and academic in my approach?

The free-exercise clause of the First Amendment states that the government “shall make no law … prohibiting the free exercise of religion.” Although the text sounds absolute, “no law” does not always mean “no law.” The Supreme Court has had to place some limits on the freedom to practice religion. To take an easy example cited by the Court in one of its landmark “free-exercise” cases (Reynolds v. U.S., 1878), the First Amendment would not protect the practice of human sacrifice even if some religion required it. In other words, while the freedom to believe is absolute, the freedom to act on those beliefs is not.

But where may government draw the line on the practice of religion? The courts have struggled with the answer to that question for much of our history. Over time, the Supreme Court developed a test to help judges determine the limits of free exercise. First fully articulated in the 1963 case of Sherbert v. Verner, this test is sometimes referred to as the Sherbert or “compelling interest” test. The test has four parts: two that apply to any person who claims that his freedom of religion has been violated, and two that apply to the government agency accused of violating those rights.

For the individual, the court must determine

Whether the person has a claim involving a sincere religious belief, and

Whether the government action places a substantial burden on the person’s ability to act on that belief.

If these two elements are established, then the government must prove

That it is acting in furtherance of a “compelling state interest,” and

That it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

The Supreme Court, however, curtailed the application of the Sherbert test in the 1990 case of Employment Division v. Smith. In that case, the Court held that a burden on free exercise no longer had to be justified by a compelling state interest if the burden was an unintended result of laws that are generally applicable.

After Smith, only laws (or government actions) that (1) were intended to prohibit the free exercise of religion, or (2) violated other constitutional rights, such as freedom of speech, were subject to the compelling-interest test. For example, a state could not pass a law stating that Native Americans are prohibited from using peyote, but it could accomplish the same result by prohibiting the use of peyote by everyone.

In the wake of Smith, many religious and civil liberties groups have worked to restore the Sherbert test — or compelling-interest test — through legislation. These efforts have been successful in some states. In other states, the courts have ruled that the compelling-interest test is applicable to religious claims by virtue of the state’s own constitution. In many states, however, the level of protection for free-exercise claims is uncertain.

The application of the “compelling interest” test, established by the Supreme Court in 1963 in Sherbert v. Verner, was sharply curtailed by the 1990 Supreme Court decision Employment Division v. Smith. But some states — such as Florida, Texas and Connecticut — have passed laws requiring the use of a compelling-interest test in free-exercise cases. Moreover, since most cases involving public schools involve more than one constitutional right (e.g., the religion claim can be linked with a parental right or free-speech claim), some might argue that the compelling-interest test must be used even under Smith.

Regardless of how this is eventually settled in the courts, public schools fulfill the spirit of the First Amendment when they use the Sherbert test to accommodate the religious claims of students and parents where feasible.

Yes. According to the White House, faith-based organizations that receive federal funds may discriminate in employment based on religion.

Charitable-choice provisions found in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWOR) contain no prohibitions against religious discrimination in employment by religious service providers. Though the Civil Rights Act of 1964, otherwise known as Title VII, prohibits employment discrimination based on religion, it contains an exception for religious institutions. Writing for the Center for Public Justice, Carl Esbeck of the Christian Legal Society explained that such exemptions are necessary if faith-based organizations (FBOs) are to successfully participate in social service programs. According to Esbeck, “[p]rotecting the autonomy of FBOs was done to enable them to succeed at what they do so well, namely help the poor and needy, and to get FBOs to participate in government programs, something FBOs are far less likely to do if they face compromising regulation.”

Yet disagreement continues over both the constitutionality of such exemptions and the civic wisdom of such policies. This is easily seen in recent legislative battles between House and Senate bills over the CARE legislation, a bill broadening access to government funding of FBOs. The House passed the original version, supported by the White House, with an exemption allowing FBOs to discriminate in employment based on religion. The Senate version contained no such exemptions, or even any expansion of access, but instead provided greater tax breaks for charitable donations. Several lawsuits have also been filed over charitable choice and the employment-discrimination exemptions.

While most agree that FBOs currently may discriminate on the basis of religion, the White House website provides the following caveat:

“[C]ertain Federal laws and regulations, as well as State and local laws, may place conditions on the receipt of government funds. For example, some employment laws may prohibit discrimination on the basis of religion. Or a State or local law may prohibit discrimination on the basis of sexual orientation or require certain organizations to provide benefits to employees’ unmarried domestic partners. Some of these laws may exempt religious organizations, while others may not. Organizations with further questions about this issue may wish to consult a lawyer to find out about the specific requirements that apply to your organization and any rights you may have under the Constitution or Federal laws.”

Not as part of their federally funded programs. According to Title 45, Part 87, Section 2, Subsection C of the Code of Federal Regulations, “organizations that receive direct financial assistance from the [federal government] may not engage in inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded with direct financial assistance from the [government].”

Title 45, Part 87, Section 2, Subsection C of the Code of Federal Regulations states that “if an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded with direct financial assistance from the [government], and participation must be voluntary for beneficiaries of the programs or services funded with such assistance.”

No. Title 45, Part 87, Section 2, Subsection E of the Code of Federal Regulations says that “an organization that participates in programs funded by direct financial assistance from the [government] shall not, in providing services, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.”

An elective history course that focuses on the Bible is a difficult undertaking for public schools because of the complex scholarly and religious debates about the historicity of the Bible. Such a course would need to include non-biblical sources from a variety of scholarly perspectives. Students would study archeological findings and other historical evidence in order to understand the history and cultures of the ancient world. Teachers who may be assigned to teach a history course focused on the Bible need a great deal of preparation and sophistication.

Unless schools are prepared to design a course that meets the above requirements, they will face legal and educational challenges. In view of these requirements, most public schools that have offered a Bible elective have found it safer and more age-appropriate to use the Bible literature approach discussed earlier in this guide.

Schools must keep in mind that the Bible is seen by millions of Jews and Christians as scripture. For adherents of these faiths, the Bible makes sense of events in terms of God’s purposes and actions. This means that the Bible may not be treated as a history textbook by public school teachers but must be studied by examining a variety of perspectives — religious and non-religious — on the meaning and significance of the biblical account.

As we have already noted, sorting out what is historical in the Bible is complicated and potentially controversial. Teachers who teach a history course focused on the Bible need to be sensitive to the differences between conventional secular history and the varieties of sacred history. Students must learn something about the contending ways of assessing the historicity of the Bible. They cannot be uncritically taught to accept the Bible as literally true, as history. Nor should they be uncritically taught to accept as historical only what secular historians find verifiable in the Bible.

Sometimes, in an attempt to make study about the Bible more “acceptable” in public schools, educators are willing to jettison accounts of miraculous events. But this too is problematic, for it radically distorts the meaning of the Bible. For those who accept the Bible as scripture, God is at work in history, and there is a religious meaning in the patterns of history. A Bible elective in a public school may examine all parts of the Bible, as long as the teacher understands how to teach about the religious content of the Bible from a variety of perspectives.

Given the importance and influence of religion, public schools should include study about religion in some depth on the secondary level. As already suggested, such study may include study about the Bible, where appropriate, in history and literature courses as well as in elective courses that deal with the Bible.

However, a course that includes study about the Bible and its influence will not educate students about religion generally. Just as there is more to history than American history, so there is more to religion than the Bible, Judaism and Christianity.

Public schools should also include study about other religious faiths in the core curriculum and offer electives in world religions. Because religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world. Moreover, knowledge of the roles of religion in the past and present promotes crosscultural understanding in our increasingly diverse society.

Some school districts require that high schools offering a Bible elective also offer an elective in world religions. There is considerable merit in this approach. This gives students an opportunity to learn about a variety of religions and conveys to students from faiths other than the biblical traditions that their religions are also worthy of study. It is important for public schools to convey the message that the curriculum is designed to offer a good education, and not to prefer any religious faith or group.

The study of family, community, various cultures, the nation and other themes and topics important in elementary education may involve some discussion of religion. Elementary students are introduced to the basic ideas and practices of the world’s major religions in a number of textbooks and curriculums used in public schools. These discussions of religion focus on the generally agreed-upon meanings of religious faiths — the core beliefs and symbols, as well as important figures and events. Such discussions may include an introduction to biblical literature as students learn something about the various biblical faiths.

This early exposure to study about religion builds a foundation for later, more complex discussions in secondary school literature and history courses. Such teaching is introductory in nature; elementary education is not the place for in-depth treatment of religion. Stories drawn from various religious faiths may be included among the wide variety of stories read by students. But the material selected must always be presented in the context of learning about religion.

One court has permitted elective Bible courses at the elementary level (in Wiley v. Franklin, 468 F. Supp. 133 (E.D. Tenn. 1979)). But if such instruction is undertaken, it must be done academically and objectively by a qualified teacher. Children would need to understand that they are studying about what the people of a particular religious tradition believe and practice. Devotional books intended for faith formation or religious education may not be used in a public school classroom.

As in secondary schools, a balanced and fair curriculum in the elementary grades would not limit study about religion to Judaism and Christianity, but would include a variety of the world’s major religious faiths.

No. Just because schools may not prohibit the distribution of all student materials does not mean that schools have no control over what may be distributed on school premises. On the contrary, courts have repeatedly held that schools may place reasonable “time, place and manner” restrictions on all student materials distributed on campus. Thus, schools may specify when the distribution can occur (e.g., lunch hour or before or after classes begin), where it can occur (e.g., outside the school office) and how it can occur (e.g., from fixed locations as opposed to roving distribution). One recent decision upheld a policy confining the distribution of student literature to a table placed in a location designated by the principal and to the sidewalks adjacent to school property. Of course, any such restriction must be reasonable.

It is also likely that schools may insist on screening all student materials prior to distribution to ensure their appropriateness for a public school. Any such screening policy should provide for a speedy decision, a statement of reasons for rejecting the literature and a prompt appeals process. Because the speech rights of students are not coextensive with those of adults, schools may prohibit the distribution of some types of student literature altogether. Included in this category would be:

Materials that would be likely to cause substantial disruption of the operation of the school. Literature that uses fighting words or other inflammatory language about students or groups of students would be an example of this type of material. Student speech may not be prohibited simply because it is considered offensive by some (see Saxe v. State College Area School Dist., 3rd Cir. 2001).

Material that violates the rights of others. Included in this category would be literature that is libelous, invades the privacy of others or infringes on a copyright.

Materials that are obscene, lewd or sexually explicit.

Commercial materials that advertise products unsuitable for minors.

Materials that students would reasonably believe to be sponsored or endorsed by the school. One recent example of this category of speech was a religious newspaper that was formatted to look like the school newspaper.

Though schools have considerable latitude in prohibiting the distribution of materials that conflict with their educational mission, schools generally may not ban materials solely on the basis of content. Similarly, schools should not allow a heckler’s veto by prohibiting the distribution of only those materials that are unpopular or controversial. If Christian students are allowed to distribute their newsletters, then Buddhists, Muslims and even Wiccans must be given the same privilege.

Teachers must be alert to the distinction between teaching about religious holidays, which is permissible, and celebrating religious holidays, which is not. Recognition of and information about holidays may focus on how and when they are celebrated, their origins, histories and generally agreed-upon meanings. If the approach is objective and sensitive, neither promoting nor inhibiting religion, this study can foster understanding and mutual respect for differences in belief. Teachers may not, however, use the study of religious holidays as an opportunity to proselytize or otherwise inject their personal religious beliefs into the discussion.

The use of religious symbols is permissible as a teaching aid or resource, provided they are used only as examples of cultural or religious heritage. Religious symbols may be displayed only on a temporary basis as part of the academic lesson being studied. Students may choose to create artwork with religious symbols, but teachers should not assign or suggest such creations.

Guest speakers also can help teachers present the appropriate information, but only if they understand their role as informational, not devotional, in nature.

In addition, the use of art, drama, music, or literature with religious themes is permissible if it serves a sound educational goal in the curriculum. Such themes should be included on the basis of their academic or aesthetic value, and not as a vehicle for promoting religious beliefs. For example, sacred music may be sung or played as part of the academic study of music. School concerts that present a variety of selections may include religious music. Concerts should, however, avoid programs dominated by religious music, especially when these coincide with a particular religious holiday.

Students from certain religious traditions may ask to be excused from classroom discussions or activities related to particular holidays. For example, holidays such as Halloween and Valentine’s Day, which are considered by many people to be secular, are viewed by others as having religious overtones.

Excusal requests may be especially common in the elementary grades, where holidays are often marked by parties and similar nonacademic activities. Such requests should be routinely granted in the interest of creating good policy and upholding the religious-liberty principles of the First Amendment.

In addition, some parents and students may make requests for excusals from discussions of certain holidays, even when these holidays are treated from an academic perspective. If these requests are focused on a limited, specific discussion, administrators should grant such requests, in order to strike a balance between the student’s religious freedom and the school’s interest in providing a well-rounded education.

Administrators and teachers should understand, however, that a policy or practice of excusing students from a specific activity or discussion may not be used as a rationale for school sponsorship of religious celebration or worship for the remaining students.

Schools should have policies concerning absences that take into account the religious needs and requirements of students. Students should be allowed a reasonable number of excused absences, without penalties, to observe religious holidays within their traditions. Students may be asked to complete makeup assignments or tests in conjunction with such absences.

No. The grade level of the students and the academic requirements of the course should determine which religions to study and how much to discuss about religion.

In the elementary grades, the study of family, community, culture, history, literature, the nation, and other themes and topics should naturally involve some discussion of religion. Elementary students are introduced to the basic ideas and practices of the world’s major religions by focusing on the generally agreed-upon meanings of religious faiths — the core beliefs and symbols as well as important figures and events. Stories drawn from various faiths may be included among the wide variety of stories read by students, but the material selected must always be presented in the context of learning about religion. On the secondary level, the social studies, literature, and the arts offer opportunities for the inclusion of study about religions, their ideas, and practices. The academic needs of the course should determine which religions are studied and how much time is required to provide an adequate understanding of the concepts and practices under consideration.

In a U.S. history course, for example, some faith communities may be given more time than others simply because of their predominant influence on the development of the nation. In world history, a variety of faiths must be studied, based on the regions of the world, in order to understand the various civilizations and cultures that have shaped history and society.

Fair and balanced study about religion on the secondary level includes critical thinking about historical events involving religious traditions. Religious beliefs have been at the heart of some of the best and worst developments in human history. The full historical record, and various interpretations of it, should be available for analysis and discussion. Using primary sources whenever possible allows students to work directly with the historical record.

Of course, fairness and balance in U.S. or world history and literature is difficult to achieve, given the brief treatment of religious ideas and events in most textbooks and the limited time available in the course syllabus. Teachers will need scholarly supplemental resources that enable them to cover the required material within the allotted time, while enriching the discussion with study of religion. In fact, some schools now offer electives in religious studies to provide additional opportunities for students to study about the major faith communities in greater depth.

Overall, the curriculum should include all major voices, and many minor ones, in an effort to provide the best possible education.

Study of history or literature would be incomplete without exposure to the scriptures of the world’s major religious traditions. Some knowledge of biblical literature, for example, is necessary to comprehend much in the history, law, art and literature of Western civilization, just as exposure to the Quran is important for understanding Islamic civilization. In this sense, the classical religious texts are part of our study of history and culture.

At the same time, students need to recognize that, while scriptures tell us much about the history and cultures of humankind, they are considered sacred accounts by adherents to their respective traditions. Religious documents give students of history the opportunity to examine directly how religious traditions understand divine revelation and human values.

In a history class, selections from these accounts should always be treated with respect and used only in the appropriate historical and cultural context. Alert students to the fact that there are a variety of interpretations of scripture within each religious tradition.

Recreating religious practices or ceremonies through role-playing activities should not take place in a public school classroom for three reasons:

1. Such reenactments run the risk of blurring the distinction between teaching about religion (which is constitutional) and school-sponsored practice of religion (which is unconstitutional).

2. Role-playing religious practices or rituals may violate the religious liberty, or freedom of conscience, of the students in the classroom. Even if the students are all volunteers, many parents don’t want their children participating in a religious activity of a faith not their own. The fact that the exercise is “acting” doesn’t prevent potential problems.

3. Simulations or role-playing, no matter how carefully planned or well-intentioned, risk trivializing, caricaturing or oversimplifying the religious tradition that is being studied. Teachers should use audiovisual resources and primary sources to introduce students to the ceremonies and rituals of the world’s religions.

Yes, if the school district policy allows guest speakers in the classroom.

If a guest speaker is invited, care should be taken to find someone with the academic background necessary for an objective and scholarly discussion of the historical period and the religion under consideration. Faculty from local colleges and universities often make excellent guest speakers, or they can recommend others who might be appropriate for working with students in a public school setting. Religious leaders in the community may also be a resource. Remember, however, that they have commitments to their own faith. Above all else, be certain that any guest speaker understands the First Amendment guidelines for teaching about religion in public education and is clear about the academic nature of the assignment.

Some teachers prefer not to answer the question, believing that it is inappropriate for a teacher to inject personal beliefs into the classroom. Other teachers may choose to answer the question directly and succinctly in the interest of an open and honest classroom environment.

Before answering the question, however, teachers should consider the age of the students. Middle and high school students may be able to distinguish between a personal conviction and the official position of the school; very young children may not. In any case, the teacher may answer at most with a brief statement of personal belief — but may not turn the question into an opportunity to proselytize for or against religion. Teachers may neither reward nor punish students because they agree or disagree with the religious views of the teacher.

In times of sudden crisis (e.g., violent or accidental death of students or teachers), schools may call on a wide range of qualified counselors, including religious leaders, to assist school-employed counselors in helping children cope with the crisis at hand. Of course, religious leaders may not be the only grief counselors invited on campus during a crisis. Religious leaders may not otherwise be given routine access to students during the school day. Even when counseling to deal with a sudden crisis, religious leaders should remember that a public school is not a place for proselytizing or other overt religious activity.

To the extent that schools cooperate with adults who are important in a student’s life (parents or other relatives, guardians, foster parents, social workers or neighbors) to help the child deal with school work, behavioral problems, or other issues, schools may also cooperate with an adult acknowledged by a student as his or her religious leader. However, a school may not in any way compel or coerce a student to speak to representatives of religious institutions.

Generally no. Adults from outside the school do not have an automatic right to distribute materials to students in a public school. May school officials allow them to do so? Although this area of the law is somewhat unclear, it is fair to say that schools should exercise great caution before giving an outside group access to students during the school day. Giving some groups access opens the door to others. Moreover, if a religious group is allowed to actively distribute religious literature to students on campus, that activity is likely to violate the establishment clause.

At least one lower court has upheld “passive” distribution of materials in a secondary school by religious and other community groups. Note that in this case the group left materials for students to browse through and take only if they wished. Also, a wide variety of community groups were given similar privileges, and the school posted a disclaimer explaining that the school did not endorse these materials. Under those conditions, this court allowed passive distribution, but only in the secondary-school setting (see Peck v. Upshur County, 4th Cir. 1998, although other federal courts have rejected this distinction).

Schools may announce community events or meetings of groups — including religious groups — that work with students. All of these groups should be treated in the same way. The school should make clear that it does not sponsor these community groups (see Child Evangelism Fellowship v. Stafford Township, 3rd Cir. 2004).

Public schools may cooperate with mentoring projects run by religious institutions provided that:

Other community organizations are given an equal opportunity and are subject to the same secular selection criteria to operate such programs in partnership with the schools.

Referrals are made without regard to a student’s religious beliefs or lack of them.

Participation in the program is not conditioned on mandatory participation, or refusal to participate, in religious programs operated by a religious institution.

At no time do school officials encourage or discourage student participation in the religious programs of religious institutions.

In order to provide for the safety of students traveling to and from schools, the school district may ask local institutions (e.g., businesses, firehouses, religious institutions) to serve as temporary shelters for students who seek to avoid danger or threatening situations. The school shall provide signs indicating that the place is a shelter available for students.

Public schools may arrange to use the facilities of private landholders, including churches, temples, mosques or other religious institutions. Of course, all such facilities must meet applicable health and safety codes. But if the arrangement involves the use of sanctuaries, playgrounds, libraries or other facilities owned by religious groups, then the following First Amendment guidelines must be followed:

1. The schools must have a secular educational purpose for seeking to use the facilities, such as after-school recreation, extended day care, homework study hall, etc.

2. Where schools lease space from religious institutions for use as regular public school classrooms, the leased space is in effect a public school facility. Religious symbols or messages may not be displayed in the leased areas.

3. Cooperative programs using the facilities of religious institutions must not afford an actual opportunity for proselytizing by clergy, school employees, or adult volunteers of any school children during the school-affiliated program. (Of course, the law is not violated if a cooperative program’s use of a religious facility coincidentally results in a student gaining an interest in attending worship services there. But the law prohibits clergy from leading devotions as part of the school program.)

4. As stated above, religious symbols and messages may not be displayed in space leased from religious institutions for use as public-school classrooms. The rules are somewhat different for cooperative programs. A room bedecked with scriptural injunctions about repentance and salvation would not be appropriate for cooperative programs; a room with religious symbols or icons might well be.

5. School officials may neither select nor reject the use of a private religious facility based on the popularity or unpopularity of its religious teachings. Religion-neutral criteria should be employed, e.g., proximity to the schools in question; suitability of the facility for the intended use; health and safety; comparative expenses (if any); accessibility for parent pickup or busing.

6. The school’s arrangement for use of a private religious facility should not involve or necessitate an ongoing administrative entanglement between the school district and the religious institution, in which one party ends up exerting influence over the content, scheduling or staffing of the other’s activities.

Yes. Where the state determines that a day of rest would be desirable in some kinds of businesses and not in others, they are permitted to restrict only those that they deem to be necessary. Likewise, the state may decide to forbid or limit the sale of certain items (such as alcohol) on any given day, so long as the decision is justified by some secular purpose instead of a religious one. In a 1999 decision, Harris County, Texas v. CarMax Auto Superstores, Inc., the 5th U.S. Circuit Court of Appeals upheld a Texas law that forbade car dealerships from being open on consecutive Saturdays and Sundays. Effectively this forced the business owners to choose one day or the other as a day of rest for their employees, though it did not dictate any particular preference as to which one should be adopted. The court denied that the law unfairly discriminated against car dealers or established any sort of preference for religion as opposed to no religion.

This is one of the most confusing and controversial areas of the current school-prayer debate. While the courts have not clarified all of the issues, some are clearer than others.

For instance, inviting outside adults to lead prayers at graduation ceremonies is clearly unconstitutional. The Supreme Court resolved this issue in the 1992 case Lee v. Weisman, which began when prayers were delivered by clergy at a middle school’s commencement exercises in Providence, Rhode Island. The school designed the program, provided for the invocation, selected the clergy, and even supplied guidelines for the prayer.

Therefore, the Supreme Court held that the practice violated the First Amendment’s prohibition against laws “respecting an establishment of religion.” The majority based its decision on the fact that (1) it is not the business of schools to sponsor or organize religious activities, and (2) students who might have objected to the prayer were subtly coerced to participate. This psychological coercion was not resolved by the fact that attendance at the graduation was “voluntary.” In the Court’s view, few students would want to miss the culminating event of their academic career.

A murkier issue is student-initiated, student-led prayer at school-sponsored events. On one side of the debate are those who believe that student religious speech at graduation ceremonies or other school-sponsored events violates the establishment clause. They are bolstered by the 2000 Supreme Court case Santa Fe v. Doe, which involved the traditional practice of student-led prayers over the public-address system before high school football games.

According to the district, students would vote each year on whether they would have prayers at home football games. If they decided to do so, they would then select a student to deliver the prayers. To ensure fairness, the school district said it required these prayers to be “non-sectarian [and] non-proselytizing.”

A 6-to-3 majority of the Supreme Court still found the Santa Fe policy to be unconstitutional. The majority opinion first pointed out that constitutional rights are not subject to a vote. To the contrary, the judges said the purpose of the Bill of Rights was to place some rights beyond the reach of political majorities. Thus, the Constitution protects a person’s right to freedom of speech, press, or religion even if no one else agrees with the ideas a person professes.

In addition, the Court found that having a student, as opposed to an adult, lead the prayer did not solve the constitutional dilemma. A football game is still a school-sponsored event, they held, and the school was still coercing the students, however subtly, to participate in a religious exercise.

Finally, the Court ruled that the requirement that the prayer be “non-sectarian” and “non-proselytizing” not only failed to solve the problems addressed in Lee v. Weisman, it may have aggravated them. In other words, while some might like the idea of an inclusive, nonsectarian “civil” religion, others might not. To some people, the idea of nonsectarian prayer is offensive, as though a prayer were being addressed “to whom it may concern.” Moreover, the Supreme Court made clear in Lee v. Weisman that even nondenominational prayers or generic religiosity may not be established by the government at graduation exercises.

Another thorny part of this issue is determining whether a particular prayer tends to proselytize. Such determinations entangle school officials in religious matters in unconstitutional ways. In fact, one Texas school district was sued for discriminating against those who wished to offer more-sectarian prayers at graduation exercises.

On the other side of this debate are those who contend that not allowing students to express themselves religiously at school events violates the students’ free exercise of religion and free speech.

Case law indicates, however, that this may be true only in instances involving strictly student speech, and not when a student is conveying a message controlled or endorsed by the school. As the 11th Circuit case of Adler v. Duval County (2001) suggests, it would seem possible for a school to provide a forum for student speech within a graduation ceremony when prayer or religious speech might occur.

For example, a school might allow the valedictorian or class president an opportunity to speak during the ceremony. If such a student chose to express a religious viewpoint, it seems unlikely it would be found unconstitutional unless the school had suggested or otherwise encouraged the religious speech. (See Doe v. Madison School Dist., 9th Cir. 1998.) In effect, this means that in order to distance itself from the student’s remarks, the school must create a limited open forum for student speech in the graduation program.

Again, there is a risk for school officials in this approach. By creating a limited open forum for student speech, the school may have to accept almost anything the student wishes to say. Although the school would not be required to allow speech that was profane, sexually explicit, defamatory, or disruptive, the speech could include political or religious views offensive to many, as well as speech critical of school officials.

If school officials feel a solemnizing event needs to occur at a graduation exercise, a neutral moment of silence might be the best option. This way, everyone could pray, meditate, or silently reflect on the previous year’s efforts in her own way.

No. The Equal Access Act states that “employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity.”

For insurance purposes, or because of state law or local school policy, teachers or other school employees are commonly required to be present during student meetings. But if the student club is religious in nature, school employees may be present as monitors only. Such custodial supervision does not constitute sponsorship or endorsement of the group by the school.

If the Supreme Court struck down Congress’ attempt to protect religious liberties in the Religious Freedom Restoration Act, why wouldn’t it just do the same thing with RLUIPA?

Congress has different constitutional sources for its authority. If the Supreme Court denies it the power to create a law under one source, Congress may still be able to accomplish its goal using a different source. Congress justified its passage of RFRA under a section of the 14th Amendment that gives it the power to pass laws deemed necessary to protect the liberties ensured by that amendment, which would include the First Amendment’s guarantee of “free exercise of religion.” The Court held that under that section Congress was only permitted to develop laws that would enforce the standard of protection deemed necessary by the Court itself, as opposed to the stricter general standard embodied in RFRA.

RLUIPA’s justification was rooted in Congress’ power to regulate matters touching on interstate commerce. The Supreme Court has only rarely overturned congressional acts based on the interstate-commerce clause, so it is possible (though far from a certainty) that the Court would find a sufficient tie to interstate commerce to justify Congress in creating RLUIPA. It is important to note that even if the Court finds that Congress acted from the proper source of authority, the act might still be found to violate the establishment clause and therefore be unconstitutional.

Cities have the right to zone specific areas for religious purposes, but they do not have the right to restrict the number of churches or religious institutions within their boundaries. Under RLUIPA, religious institutions are given some protection against zoning laws. Though the act does not completely exempt churches from zoning laws, officials must have a compelling interest in restricting a church or other religious institution from being built in a specific area.

Some fear that allowing an overabundance of religious institutions in a city will damage the economy because religious organizations are exempt from property taxes. Chris Hoene, a research manager for the National League of Cities, said some cities had become inventive in devising ways to collect money from churches. For example, some cities have begun to tax religious organizations’ profit-generating enterprises, including publishing and gift-shop sales.

Yes. A student group may use school media — such as the public-address system, school paper, and school bulletin board — as long as other noncurriculum-related student groups are allowed to do so. Any policy concerning the use of school media must be applied to all noncurriculum-related student groups in a nondiscriminatory manner. Schools, however, may issue disclaimers indicating that extracurricular student groups are not school-sponsored or endor

The Equal Access Act does not take away a school’s authority to establish reasonable time, place, and manner regulations for a limited open forum. For example, a school may establish for its student clubs a reasonable meeting time on any one school day, a combination of days, or all school days. It may assign the rooms in which student groups can meet. It may enforce order and discipline during the meetings. The key, however, is that the school’s time, place, and manner regulations must be uniform, nondiscriminatory, and neutral in viewpoint.

Yes. According to guidelines endorsed by a broad coalition of educational and religious liberty organizations, “student groups that are unlawful, or that materially and substantially interfere with the orderly conduct of educational activities, may be excluded. However, a student group cannot be denied equal access simply because its ideas are unpopular. Freedom of speech includes the ideas the majority may find repugnant.” *

Most schools require students to submit a statement outlining the purpose and nature of the proposed club. School officials do not have to allow meetings of groups that advocate violence or hate or engage in illegal activity. This does not mean, however, that schools may bar students from forming clubs to discuss controversial social and legal issues such as abortion or sexual orientation. Again, student-initiated clubs in a limited open forum may not be barred on the basis of the viewpoint of their speech. Some schools require parental permission for students to join an extracurricular club. Although this step is not required by the Equal Access Act, it has enabled schools to keep the forum open in communities where student clubs have sparked controversy.

* “The Equal Access Act: Questions and Answers,” found in Haynes & Thomas, Finding Common Ground (2001).

A school may issue a disclaimer that plainly states that in affording such student groups an opportunity to meet, it is merely making its facilities available, nothing more.

The question of whether a religious display on government property is constitutional requires a multi-step analysis. First, one should ask, who is funding and erecting the display? If a private group wants to place a religious monument on public property, then a free-expression analysis should be conducted, looking into such things as the type of forum in question. If, as in this case, a government entity is attempting to post a religious document, then a separate line of questions must be raised.

Religious displays on public property can be legal, but they must pass constitutional muster by not violating the First Amendment’s establishment clause, which requires government “neutrality” towards religion. In deciding whether or not particular religious displays violate the establishment clause, courts look to two Supreme Court tests, the Lemon test and the endorsement test.

The Lemon test poses three questions: 1) Did the state actor have a secular purpose in posting the documents; 2) was the primary effect of the action to advance or promote religion; and 3) was there excessive entanglement between government and religion in the given activity? The government conduct must survive all three of these prongs if the action is to survive constitutional muster.

A more recent test that has gained popularity in the courts is the endorsement test. Justice Sandra Day O’Connor first outlined this test in her concurring opinion in the 1983 decision Lynch v. Donnelly, which involved a city-owned holiday display containing religious elements in a Pawtucket, R.I., park. This approach examines the following questions: Did the state actor subjectively intend to promote religion through its actions, and would the reasonable observer interpret the actions of the state as an endorsement of religion?

The elements of both tests should be examined before a government representative posts any religious documents or engages in other forms of religious expression.

Two cases decided in June 2005 by the U.S. Supreme Court illustrate how even the high court can reach very different conclusions in ruling on seemingly similar religious-display cases. Both McCreary County v. ACLU and Van Orden v. Perry involved displays of the Ten Commandments on public property. In writing for the 5-4 majority in McCreary, Justice David Souter used the Lemon test and determined that the Ten Commandments displays in the two Kentucky courthouses conveyed a religious message to the public, failing to satisfy the first prong of the Lemon test that the display must have a secular purpose. Therefore, the Court majority found the displays in McCreary were unconstitutional.

In Van Orden, which was decided on the same day as McCreary, the high court ruled that a Ten Commandments monument on the Texas State Capitol grounds was constitutional. Chief Justice William Rehnquist, in writing the plurality opinion for the Court, was quick in dismissing the Lemon test as the appropriate way to evaluate the case. (The vote was 4-1-4.) Instead, Rehnquist focused on the nature and setting of the monument. The monument was part of a larger display containing 17 monuments and 21 historical markers celebrating the “people, ideals, and events that compose Texan identity.” In determining that the monument was of a secular purpose, and therefore constitutional, Justice Stephen Breyer in his concurring opinion noted that because the monument had been on display for 40 years before being challenged, it “suggests more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.”

Later that same year, the 6th U.S. Circuit Court of Appeals held in ACLU v. Mercer County that another Kentucky County courthouse Ten Commandments display was constitutional. In this case, a Mercer County resident had requested permission to hang a display titled “Foundations of American Law and Government” in the courthouse. The display included the Ten Commandments, Mayflower Compact, Declaration of Independence, Magna Carta, Star-Spangled Banner, Bill of Rights and other historical documents. The 6th Circuit affirmed the lower court’s ruling that because the Ten Commandments was part of an exhibit and was not, in any way, more prominently displayed than any of the other documents, the display had a secular purpose in educating the public rather than endorsing religion.

It depends. Determining the constitutionality of religious holiday displays requires an analysis that is heavily “fact-driven,” meaning the slightest change in facts could completely change whether or not a holiday display is constitutional. Three U.S. Supreme Court cases deal specifically with this question. In Lynch v. Donnelly (1984) the Court held that a city-sponsored crèche in a public park did not violate the establishment clause because the display included other “secular” symbols, such as a teddy bear, dancing elephant, Christmas tree, and Santa Claus house. In Allegheny v. ACLU (1989) the Court found that a Nativity scene in a county courthouse accompanied by a banner that read “Gloria in Excelsis Deo” (“Glory to God in the Highest”), was unconstitutional because it was “indisputably religious,” rather than secular, in nature. In 1995 in Capitol Square Review & Advisory Board v. Pinette the Court held that a private group of individuals (in this case the Ku Klux Klan) could erect a cross in the Ohio statehouse plaza during the holiday season. In reaching its decision, the Court heavily relied on the fact that the KKK had requested permission to display the cross in the same manner as any other private group was required to do, that the public park had often times been open to the public for various religious activities, and that the KKK expressly disclaimed any government endorsement of the cross with written language on the cross.

Despite the Supreme Court’s providing these baseline principles in religious holiday display cases, courts around the country have a difficult time in their application. For example, the 1st U.S. Circuit Court of Appeals held that a holiday display in a government building violated the establishment clause because the display lacked sufficient secular content. (Amancio v. Town of Somerset, 28 F. Supp. 2d 677 (D. Mass. 1998).) Included in the display was a Nativity scene, Christmas tree and Santa Claus. Contrast that decision with a ruling out of the 8th Circuit in which it was held that a holiday display that contained candy canes, Christmas tree, snowman, wrapped gifts and a crèche was constitutional. (ACLU v. City of Florissant, 186 F.3d 1095 (8th Cir. 1999).) The 1st Circuit and 8th Circuit clearly are split, illustrated by these two decisions, in how to interpret Lynch and Allegheny.

Some circuits, however, have applied the trio of cases with great consistency. For example, the 3rd Circuit has held that a display depicting a Hanukkah menorah, Christmas trees, Kwanzaa candles, a sled and Frosty the Snowman, among other things, was constitutional. (ACLU v. Schundler, 168 F.3d 92 (1999).) This court adhered strictly to the decisions in Lynch and Donnelly in reaching its decision. The 2nd Circuit also reached a similar decision in a holiday display case that included a crèche, Christmas tree, Hanukkah menorah, and a posted sign that stated that the display was privately sponsored. (Elewski v. City of Syracuse, 123 F. 3d 51 (2nd Cir. 1997).)

First of all, any holiday display erected on private property is immune from any constitutional challenges. Secondly, if an individual or group of individuals decide to set up a holiday display on public property (i.e. parks, courthouses, town halls, etc) he should petition the appropriate authorities for authorization to erect such a display. If the site has been home to a variety of religious displays in the past, it is likely permission will be granted.

No, it is likely that prison officials could refuse this request, even if motivated by sincere religious belief, because of legitimate safety concerns. The courts grant a good deal of discretion to prison officials when it comes to safety considerations. Safety is a paramount concern in prisons and is termed a legitimate penological interest.

Whatever legal standard is used to resolve inmate freedom-of-religion lawsuits, some in society ask: “Who cares?” Many people believe that inmates forfeited their rights when they committed their crimes. But others believe society should try to encourage inmates to practice their religious faith.

“Let’s face it. Most inmates do get out of prison at some point,” says David Fahti, a prison expert. “And the single best predictor of whether an inmate will do OK when they reenter society is whether they maintain community ties when they are in prison.

“There are many reasons why we should recognize the religious rights of inmates,” Fahti says. “Our country was founded on principles of religious freedom. Many people came to this country to flee religious persecution in other countries. As long as a prisoner’s practice of religion does not interfere with prison security, there is simply no reason to deny an inmate’s religious rights.

Adds Keith Defasio, a prisoners’-rights advocate, “Even though inmates are incarcerated for crimes, they should still be entitled to their constitutional dignities. Where are we as a democracy if we can give and take away constitutional rights?”

No Supreme Court ruling explicitly establishes a position on religious exemptions to state-compelled vaccination. However, it is clear from the Court’s establishment-clause rulings that it is unlikely for all such exemptions to be found in violation of the First Amendment. What is less clear is whether or not the Court would find the free-exercise clause to mandate the inclusion of religious exemptions. For this reason, the status of religious exemptions to state-compelled vaccinations is still very much unclear. What the Court has found, however, is that a state has the authority to require its citizens to receive certain inoculations. This authority was established in 1905 in Jacobson v. Massachusetts, where the Court ruled that Massachusetts had the authority to require its citizens to be inoculated against smallpox.

All states currently require children to follow at least some form of standardized immunization schedule in order to be enrolled in public school. Vaccinations often required by this schedule include those against diphtheria, whooping cough, and the measles. Of the 50 states, all offer some exemptions for religious opposition to vaccination except Mississippi and West Virginia.

States generally apply one of three standards for evaluating religious-exemption requests.

1. Parents requesting the exemption must be a member of a recognized religious organization that is opposed to vaccination.

2. Parents must demonstrate a sincere and genuinely held religious belief that opposes one or all vaccinations.

3. Parents must simply sign a statement confirming that they are religiously opposed to vaccination and would like an exemption.

No, all states include a medical exemption in their vaccination policy, and almost half of the states offer philosophical exemptions in addition to their medical and religious accommodations.

Although the words “separation of church and state” do not appear in the First Amendment, the establishment clause was intended to separate church from state. When the First Amendment was adopted in 1791, the establishment clause applied only to the federal government, prohibiting the federal government from any involvement in religion. By 1833, all states had disestablished religion from government, providing protections for religious liberty in state constitutions. In the 20th century, the U.S. Supreme Court applied the establishment clause to the states through the 14th Amendment. Today, the establishment clause prohibits all levels of government from either advancing or inhibiting religion.

The establishment clause separates church from state, but not religion from politics or public life. Individual citizens are free to bring their religious convictions into the public arena. But the government is prohibited from favoring one religious view over another or even favoring religion over non-religion.

Our nation’s founders disagreed about the exact meaning of “no establishment” under the First Amendment; the argument continues to this day. But there was and is widespread agreement that preventing government from interfering with religion is an essential principle of religious liberty. All of the Framers understood that “no establishment” meant no national church and no government involvement in religion. Thomas Jefferson and James Madison believed that without separating church from state, there could be no real religious freedom.

The first use of the “wall of separation” metaphor was by Roger Williams, who founded Rhode Island in 1635. He said an authentic Christian church would be possible only if there was “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Any government involvement in the church, he believed, corrupts the church.

Then in 1802, Thomas Jefferson, in a letter to the Danbury Baptist Association, wrote: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

The Supreme Court has cited Jefferson’s letter in key cases, beginning with a polygamy case in the 19th century. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause.

Yes. In the 1960s school-prayer cases that prompted rulings against state-sponsored school prayer and devotional Bible reading, the U.S. Supreme Court indicated that public school education may include teaching about religion. In Abington v. Schempp, Associate Justice Tom Clark wrote for the Court:

“[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be affected consistently with the First Amendment.”

In these guidelines, a “cooperative arrangement” is defined as a shared participation in specific programs and activities in accordance with a written agreement. Before entering into a cooperative arrangement, public schools and religious communities should understand and accept the following principles:

  • Under the First Amendment, public schools must be neutral concerning religion in all of their activities. School officials must take the necessary steps to ensure that any cooperative activities that take place are wholly secular. Persons invited to address students during the school day shall be advised of this requirement and must agree to abide by it before being allowed access to students
  • Students have the right to engage in, or decline to engage in, religious activities at their own initiative, so long as they do not interfere with the rights of others. School districts are urged to adopt policies that reflect recent consensus statements on current law concerning religion in public schools. “Religion in the Public Schools: A Joint Statement of Current Law,” the U.S. Department of Education’s guidelines on “Religious Expression in Public Schools,” and other consensus guidelines are available: Write to the First Amendment Center Online to request copies.

Cooperative programs between religious institutions and the public schools are permissible only if:

  • Participation in programs is not limited to religious groups. That is, schools must be open to participation by all responsible community groups. Qualifications should not be established which have the practical effect of including only religious groups. Eligibility shall be stated in writing
  • A student’s grades, class ranking or participation in any school program will not be affected by his or her willingness to participate or not participate in a cooperative program with a religious institution
  • Student participation in any cooperative program may not be conditioned on membership in any religious group, acceptance or rejection of any religious belief, or participation (or refusal to participate) in any religious activity.

In its 1971 decision Lemon v. Kurtzman, the U.S. Supreme Court set forth a three-pronged inquiry commonly known as the Lemon test. To pass this test, thereby allowing the display or motto to remain, the government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive government entanglement with religion.

The study of history offers a number of opportunities to study about the Bible. When studying the origins of Judaism, for example, students may learn different theories of how the Bible came to be. In a study of the history of the ancient world, students may learn how the content of the Bible sheds light on the history and beliefs of Jews and Christians — adherents of the religions that affirm the Bible as scripture. A study of the Reformation might include a discussion of how Protestants and Catholics differ in their interpretation and use of the Bible.

In U.S. history, there are natural opportunities for students to learn about the role of religion and the Bible in American life and society. For example, many historical documents — including many presidential addresses and congressional debates — contain biblical references. Throughout American history, the Bible has been invoked on various sides of many public-policy debates and in conjunction with social movements such as abolition, temperance and the civil rights movement. A government or civics course may include some discussion of the biblical sources for parts of our legal system.

Learning about the history of the Bible, as well as the role of the Bible in history, are appropriate topics in a variety of courses in the social studies.

A literature elective in the Bible would focus on the Bible as a literary text. This might include the Bible as literature and the Bible in literature. A primary goal of the course would be basic biblical literacy — a grasp of the language, major narratives, symbols and characters of the Bible. The course might also explore the influence of the Bible in classic and contemporary poems, plays and novels.

Of course, the Bible is not simply literature — for a number of religious traditions it is scripture. A “Bible Literature” course, therefore, could also include some discussion of how various religious traditions understand the text. This would require that literature teachers be adequately prepared to address in an academic and objective manner the relevant, major religious readings of the text.

Academic study of the Bible in a public secondary school may appropriately take place in literature courses. Students might study the Bible as literature. They would examine the Bible as they would other literature in terms of aesthetic categories, as an anthology of narratives and poetry, exploring its language, symbolism and motifs. Students might also study the Bible in literature, the ways in which later writers have used Bible literature, language and symbols. Much drama, poetry and fiction contains material from the Bible.

Teaching about the Bible, either in literature and history courses or in Bible electives, requires considerable preparation. School districts and universities should offer in-service workshops and summer institutes for teachers who are teaching about the Bible in literature and history courses.

When selecting teachers to teach Bible electives, school districts should look for teachers who have some background in the academic study of religion. Unless they have already received academic preparation, teachers selected to teach a course about the Bible should receive substantive in-service training from qualified scholars before being permitted to teach such courses. Electives in biblical studies should only be offered if there are teachers academically competent to teach them.

For the future, we recommend changes in teacher education to help ensure that study about religion, including the Bible, is done well in public schools. Literature and history teachers should be encouraged, as part of their certification, to take at least one course in religious studies that prepares them to teach about religions in their subject. Teachers who wish to teach a Bible elective should have taken college-level courses in biblical studies. Eventually, religious studies should become a certifiable field, requiring at least an undergraduate minor. State departments of education will need to set certification requirements, review curricula, and adopt appropriate academic standards for electives in religious studies.

Selecting a Bible for use in literature, history or elective Bible courses is important, since there is no single Bible. There is a Jewish Bible (the Hebrew Scriptures, or Tanakh), and there are various Christian Bibles — such as Catholic, Protestant and Orthodox — some with additional books, arranged in a different order. These differences are significant. For example, Judaism does not include the Christian New Testament in its Bible, and the Catholic Old Testament has 46 books, while the Protestant has 39. There are also various English translations within each of these traditions.

To adopt any particular Bible — or translation — is likely to suggest to students that it is normative, the best Bible. One solution is to use a biblical sourcebook that includes the key texts of each of the major Bibles or an anthology of various translations.

At the outset and at crucial points in the course, teachers should remind students about the differences between the various Bibles and discuss some of the major views concerning authorship and compilation of the books of the Bible. Students should also understand the differences in translations, read from several translations, and reflect on the significance of these differences for the various traditions.

Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writings. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions.

Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of the students. As a result, the free-speech rights of students are not coextensive with the rights of adults. Hate speech and sexually explicit speech, though protected for adults, are probably not protected in a public school.

Yes. So far, two federal district courts have considered the act’s land-use provisions. (Additional courts have considered RLUIPA’s institutionalized-persons provisions.) Both in Freedom Baptist Church v. Township of Middletown and Charles v. Verhagen, the courts found RLUIPA to be a constitutional exercise of congressional power. A number of other cases are currently pending, and it is likely that several will produce rulings from the various federal appellate courts. Once a case with convenient facts reaches the appropriate stage, the Supreme Court will almost certainly take the opportunity to rule definitively on RLUIPA’s constitutionality.

Individuals do not forfeit First Amendment protections when they accept public-sector employment. Public employees also can speak about religious matters in the workplace to a certain degree, particularly if the speech is not communicated to the general public. However, the employer has a right to ensure that the employee’s religious speech does not disrupt office work or otherwise become distracting to other employees to the extent that it hinders productivity. Furthermore, no employee has the right to engage in religious harassment or create a hostile work environment. If the fellow employee tells his religious-minded co-worker to stop proselytizing, the co-worker should desist from further conversations on the subject.

The free-exercise clause of the First Amendment says the government may not prevent individuals from freely practicing their religious faith. Also, Title VII of the Civil Rights Act of 1964, the major federal anti-discrimination law that covers virtually all public and private employers with 15 or more full-time employees, generally prohibits an employer from discriminating against employees on the basis of race, color, sex, national origin or religion. Under Title VII, an employer must “reasonably accommodate” an employee’s religious practice unless doing so would create an “undue hardship on the conduct of the employer’s business.”

Congress didn’t define “reasonably accommodate” and “undue hardship,” so that was left to the courts. In the 1977 ruling Trans World Airlines v. Hardison, the Supreme Court said requiring an employer “to bear more than a de minimis (minimal) cost” to accommodate an employee’s religious practice is an undue hardship. In 1986, the Court ruled that an employer meets its obligation to reasonably accommodate an employee’s religious practice when it demonstrates that it has offered a reasonable alternative to work requirements interfering with faith. See Ansonia Board of Education v. Philbrook.

Probably not, but current law is unclear on this point. Although the Equal Access Act does not apply to public schools below the secondary level, some courts have held that the free-speech clause protects the right of middle school or elementary school students to form religious or political clubs on an equal footing with other student-initiated clubs. When the EAA was debated in Congress, many lawmakers expressed doubt that young children could form religious clubs that would be truly initiated and led by students. In addition, younger students are more likely to view religious clubs meeting at the school as “school sponsored.” For these and other reasons, Congress declined to apply equal access below the secondary level.

Again, current law is unclear on this point. If school officials decide to allow middle school students to form religious or political clubs, then at the very least the school should have in place a clear policy and ground rules for the clubs, consistent with the EAA, and explain that the student clubs are not school-sponsored (see Good News Club v. School Dist. of Ladue, 8th Cir. 1994).

Yes, if the students invite these visitors and if the school does not have a policy barring all guest speakers or outside adults from extracurricular club meetings. However, the Equal Access Act states that the nonschool persons “may not direct, conduct, control, or regularly attend activities of student groups.”

Yes, if the school allows other extracurricular (noncurriculum-related) groups. Although schools do not have to open or maintain a limited open forum, once they do, they may not discriminate against a student group because of the content of its speech.

The Equal Access Act (EAA), passed by Congress in 1984 and upheld as constitutional by the Supreme Court in 1990, makes it “unlawful for any public secondary school that receives federal funds and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”

The EAA covers student-initiated and student-led clubs in secondary schools with a limited open forum. According to the act, “non-school persons may not direct, conduct, or regularly attend activities of student groups.”

A limited open forum is created whenever a public secondary school provides an opportunity for one or more “noncurriculum related groups” to meet on school premises during noninstructional time. The forum created is said to be “limited” because only the school’s students can take advantage of it.

school is bringing speakers in to discuss holidays in December, it makes educational sense to include Christmas. All outside speakers should follow First Amendment guidelines for teaching about the holidays.

Decisions about what to do in December should begin with the understanding that public schools may not sponsor religious devotions or celebrations; study about religious holidays does not extend to religious worship or practice.

Probably not, and in any event, such an effort would be unrealistic. The resolution would seem to lie in devising holiday programs that serve an educational purpose for all students — programs that make no students feel excluded or forcibly identified with a religion not their own.

Holiday concerts in December may appropriately include music related to Christmas, Hanukkah, and other religious traditions, but religious music should not dominate. Any dramatic productions should emphasize the cultural aspects of the holidays. Conversely, Nativity pageants or plays portraying the Hanukkah miracle would not be appropriate in the public school setting.

Teachers may also teach about religious holidays in the classroom, but they must be alert to the distinction between teaching about such holidays, which is permissible, and celebrating them, which is not. Guest speakers also can help teachers present the appropriate information, but only if they understand their role as informational, not devotional, in nature.

In short, while recognizing the holiday season, none of the school activities in December should have the purpose, or effect, of promoting or inhibiting religion.

Generally, teachers must instruct their students in accordance with the established curriculum. For example, the 9th Circuit ruled in 1994 against a high school biology teacher who had challenged his school district’s requirement that he teach evolution, as well as its order barring him from discussing his religious beliefs with students. In the words of the court, “[A] school district’s restriction on [a] teacher’s right of free speech in prohibiting [the] teacher from talking with students about religion during the school day, including times when he was not actually teaching class, [is] justified by the school district’s interest in avoiding [an] Establishment Clause violation.” (Peloza v. Capistrano Unified School Dist., 9th Cir. 1994)

Also, a state appeals court ruled again that a high school teacher did not have a First Amendment right to refuse to teach evolution in a high school biology class (LeVake v. Independent School Dist. No. 656, Minn. App. 2001). The teacher had argued that the school district had reassigned him to another school and another course because it wanted to silence his criticism of evolution as a viable scientific theory. The state appeals court rejected that argument, pointing out that the teacher could not override the established curriculum.

Other courts have similarly found that teachers do not have a First Amendment right to trump school district decisions regarding the curriculum (Clark v. Holmes, 7th Cir. 1972, Webster v. New Lenox School Dist. No. 122, 7th Cir. 1990). One court wrote: “the First Amendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.” (Kirkland v. Northside Independent School Dist., 5th Cir. 1989)

The 4th Circuit ruled that a teacher had “no First Amendment right to insist on the makeup of the curriculum.” (Boring v. Buncombe County Bd. of Education, 1998)

No. In Braunfeld v. Brown (1961), the Supreme Court held that observance of a Sabbath was an individual’s choice, and that a person was not discriminated against or disadvantaged by the state for its decision to require the closing of businesses on a day other than that individual’s Sabbath. States may choose to allow exemptions for certain individuals, but they may not be required to do so.

Most experts agree that teachers are permitted to wear unobtrusive jewelry, such as a cross or a Star of David. But they should not wear clothing with a proselytizing message (e.g., a “Jesus Saves” T-shirt).

As employees of the government, public school teachers and administrators are subject to the establishment clause and thus required to be neutral concerning religion while carrying out their duties. That means, for example, that school officials do not have the right to pray with or in the presence of students during the school day.

Of course, teachers and administrators — like students — bring their faith with them through the schoolhouse door each morning. Because of the First Amendment, however, school officials who wish to pray or engage in other religious activities — unless they are silent — should do so outside the presence of students.

If a group of teachers wishes to meet for prayer or scriptural study in the faculty lounge during free time in the school day or before or after school, most legal experts see no constitutional reason why they should not be permitted to do so, as long as the activity is outside the presence of students and does not interfere with their duties or the rights of other teachers.

When not on duty, of course, educators are free like all other citizens to practice their faith. But school officials must refrain from using their position in the public school to promote their outside religious activities.

The U.S. Department of Education put it this way in its 2003 guidelines on prayer in public schools:

“When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.”

The Supreme Court has declined to address this issue, though the lower courts strongly favor the constitutionality of such holidays. The 9th Circuit in 1991 upheld legislation making Good Friday a state holiday in Cammack v. Waihee, reasoning that the absence of a major traditional holiday in the spring created a state interest in decreeing one, and that it made sense for the legislature to select a day that would already be used by the majority of citizens as a holiday. This decision set the stage for the 4th and 6th Circuits to issue similar rulings. The 7th Circuit disagreed in Metzl v. Leininger (1994), holding that because Good Friday is an exclusively Christian holiday that has in no way been secularized, as have Christmas and Easter, its elevation to the status of a state holiday was unconstitutional, because it sent a message of endorsement to the public, even if the practical result was neither to advance nor inhibit religion. The holding in Metzl did allow for a finding of constitutionality, however, if the legislature would merely make the effort to advance a secular reasoning for the case.



Freedom to Petition

No. The U.S. Supreme Court has incorporated the petition clause of the First Amendment as part of the 14th Amendment’s guarantees against the states. The petition clause applies equally to state and local governments and protects petitions directed to the judicial, executive and legislative branches.

The First Amendment does not mandate that the government consider the public’s petitions or actually provide any “redress.” At a minimum, the government must have a mechanism for receiving complaints and grievances from the public, even if only to file them without consideration. Of course, due process — the guarantee that justice will be administered fairly — would apply if a citizen’s “petition” took the form of a court case.

No, parties can attempt to file such suits, but the First Amendment’s petition clause guarantees the right of all interested parties to attempt to enlist the government on their side of an issue or dispute. The vast majority of the case law and commentary — both popular and scholarly — supports that right, and suggests that the remedy for dissatisfaction with the statements of another party is more speech directed toward government, not more litigation.

Historically, a petition was a written request stating a grievance and requesting relief from a ruling authority such as a king. In modern America, petitioning embraces a range of expressive activities designed to influence public officials through legal, nonviolent means.

Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment’s petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official, nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment.

The right to petition reaches back at least to the Magna Carta in 1215. The English Declaration of Rights in 1689 confirmed that subjects were entitled to petition the king without fear of prosecution.

A libel suit, whether involving online or off-line speech, is one of the ways a SLAPP suit could be disguised; anti-SLAPP laws would apply. However, not all libel suits are SLAPP suits. Anti-SLAPP laws would apply only if it were found that a suit was filed in response to or in retaliation for citizen communications with government entities or employees, or for speech to bring attention to an issue of public interest or concern.

In 2001, U.S. District Judge David O. Carter determined that California’s anti-SLAPP statute does apply to cyber-SLAPPs. (See Global Telemedia International Inc. v. Doe et al., 132 F. Supp. 2d 1261 (C.D. Cal. 2001))

In 2003, the Massachusetts Appeals Court cited that state’s anti-SLAPP statute in throwing out a libel lawsuit against a website operator whose posted statements suggested a town official was a Nazi. (See MacDonald v. Paton, 57 Mass.App.Ct. 290 (2003) and “State appeals court rules online libel suit was really SLAPP.”)

Other state anti-SLAPP statutes may also apply to online libel suits. See “Anti-SLAPP statutes: state summary” for a state-by-state list.

No. The right to such legal resources in prison falls under due process.

Courts seldom address the petition clause in isolation, instead grouping it with other rights to free association and collective speech. The U.S. Supreme Court has noted that the right to petition at least provides the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.



Freedom of Assembly

Simply attending peaceful meetings of an organization will not make a person guilty, even if other members of that organization commit lawless acts. Guilt can be shared only if the organization and its members have a common plan to break the law.

In most cases, yes. Most states consider shopping malls to be the private property of the mall owner. Just as with any piece of private property, owners can make rules regarding that property, including what is appropriate attire. Think of “No shirt, no shoes, no service.”

In 1976, the U.S. Supreme Court decided the case Hudgens v. National Labor Relations Board. This case involved a group of labor union members who were picketing inside a privately owned mall. The union members filed suit claiming, in part, that their First Amendment free-speech rights had been violated after they were asked to leave the premises or be arrested for criminal trespass. The court looked at past cases and found that the First Amendment does not prevent a property owner from restricting the exercise of free speech on private property, in this instance, the shopping mall. So, for example, if a mall shopper were asked to cover a shirt that the mall owners found to be offensive, the shopper would have to comply or leave.

New Jersey and California have found their state constitutions to provide more freedoms than the U.S. Constitution — meaning that in these states constitutional rights to free speech can prevail over the private-property interests of mall owners. See Pruneyard Shopping Center v. Robins (1980). However, most states that have addressed this issue have found in favor of property owners.

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Freedom of assembly is explicitly guaranteed in the First Amendment, securing the right of people to meet for any purpose connected with government. Freedom of association protects the activities and composition of such meetings. This right is not explicitly set out in the Constitution but is instead derived from fundamental privacy interests and the rights of speech, petition and assembly.

Any and every group is allowed to meet to discuss ideas and peaceably promote its point of view, even if that message is distasteful to others. Whether through parades, peaceful protests, picketing or simply sharing ideas, an organization formed for expressive purposes may engage in “group speech” to advance its mission. Freedom of association also protects the gathering of people for personal, private purposes, such as the meeting of family members.

Groups that wish to engage in public activism must abide by generally applicable laws, such as criminal trespass or prohibitions on litter, excess noise, crowd congestion and permit requirements. If the government seeks to intervene in the internal affairs of a group in a way that impairs its advocacy, the regulation must be narrowly tailored to serve a compelling state interest that outweighs any burden on the group’s speech.

This freedom protects the right of people to meet and publicly support a cause or message. It also protects the right of people not to be affiliated with certain messages or ideas. For example, the government cannot force expressive associations to accept unwanted members who would impair the effectiveness of the group. Nor can the government force people to support undesirable causes through required fees or dues as part of belonging to a group.

The movement drew upon several First Amendment freedoms — primarily speech, assembly and petition — to protest racial injustice and promote racial equality. In addition, the U.S. Supreme Court strengthened these First Amendment freedoms through its rulings in court cases arising out of the civil rights movement.

In some cases, anti-abortion demonstrators physically obstruct and/or intimidate those entering and exiting abortion clinics. Legislatures and judges create and permit buffer zones to ensure that people can work safely at the clinics and that women have access to them.

Generally, no. The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

However, a few states have interpreted their own state constitutions to provide even greater free-speech protection than the federal Constitution offers. For example, the New Jersey Supreme Court has ruled that individuals have free-speech rights at privately owned shopping malls. Most state supreme courts that have examined the issue have disagreed. In April 2002, the Iowa Supreme Court refused to extend its definition of public property to include large, privately owned shopping malls.

A 2010 case, Snyder v. Phelps, involved whether a verdict assessing damages against the Westboro Baptist Church for a protest causing emotional distress to a soldier’s family violates the First Amendment.

In a somewhat related case, the Court in Frisby v. Schultz (1988) upheld a Wisconsin city ordinance banning picketing in front of private residences. “The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way,” Justice Sandra Day O’Connor wrote for the Court. The Court has also decided a series of cases involving limitations on abortion protesters outside clinics. For example, in Hill v. Colorado (2001), a divided Court (6-3) upheld a Colorado law that imposed an 8-foot floating buffer zone between protesters and those entering and leaving abortion facilities.


A law discriminates on the basis of viewpoint if it singles out a specific point of view for regulation. Consider a protest at a military funeral in which demonstrators denigrated the soldier and offended family members. If government officials punished that protest but allowed a demonstration praising the deceased, a serious charge of viewpoint discrimination could be leveled, because only protesters advocating a specific type of message were targeted.

The U.S. Supreme Court held on Feb. 28, 2006, in a case involving anti-abortion protests, that federal extortion and racketeering laws cannot be used to ban demonstrations. Use of those laws against protesters also was opposed by unions and a variety of social activists. Many states currently are considering laws that would ban protests at funerals, but those bans would be based on different kinds of laws. The proposed state bans often set out time limits starting before and ending after funeral services, or map out physical distances to separate families from demonstrators.

As a general rule, the government cannot ban speech — including public protests — because of the protest’s “content,” or subject matter. Government can restrict the time, place and manner of the speech in order to meet a higher need, such as public safety. What a demonstrator might say without challenge at noon in the public square likely would have First Amendment protection, while that same speech at midnight under an apartment building window likely would not.

No. The government can limit such protests depending on several factors. First, violent protests are outlawed anywhere. The text of the First Amendment provides for “the right of the people peaceably to assemble.” The key word is “peaceably” — violent protesting is not allowed.

Second, not all government property is treated the same for First Amendment purposes. The U.S. Supreme Court has established the public-forum doctrine to examine whether certain types of public property are open to First Amendment expressive activity. These categories include traditional public forums, limited or designated public forums and nonpublic forums. Still other government property is not considered a forum at all.

First Amendment rights apply the most in a traditional public forum, such as a public park. In its 1939 decision Hague v. C.I.O. the U.S. Supreme Court explained: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

The general rule is that government officials may not impose content-based restrictions on speech in a public forum. This means that city officials must not treat different persons and groups of persons differently on the basis of the content (and viewpoint) of their messages. The government can justify content-based speech restrictions only by showing that it has a compelling state interest in imposing them (such as safety or security concerns), and that it has done so in a narrowly tailored way. Even in a public forum, the government may impose reasonable time, place and manner restrictions that are content-neutral, leave open ample, alternative ways for expression and are narrowly tailored. This means that city officials could limit protests to certain hours of the day and perhaps certain locations. Again, the key terms are “reasonable” and “content-neutral.”

The next category is a limited or designated public forum (though some lower courts distinguish between limited and designated — see discussion in Speaking at public meetings section).

In a limited public forum (such as a meeting room on a public college campus that is frequently used by outside groups), the government designates the certain types of subject matter that can be discussed at the location. After the government has created such a forum, setting boundaries on classes of speakers or topics, the government must meet the standards of a traditional public forum; namely, restrictions on speech must be reasonable and viewpoint-neutral. The theory is that when the government opens a forum up to the public, it shouldn’t be able to skew discussions by over-regulating expression.

Still another category is the nonpublic forum, a place where the government has greater leeway for control, as restrictions on expression must only be reasonable and viewpoint-neutral. What this means is that the right to protest is often affected by the location and purpose of the government property where the protest takes place. In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The same protest rights would not apply inside the Supreme Court building or on the steps right outside the Court. In U.S. v. Kokinda (1990), the U.S. Supreme Court ruled that postal sidewalks were not public forums, writing that they do “not have the characteristics of public sidewalks traditionally open to expressive activity.” The Court clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”

In sum, there is no unfettered right to protest on government property. Protests must be peaceable, and the government has the right to impose content-neutral, reasonable time, place and manner restrictions on expression. Furthermore, as the Supreme Court said in Kokinda, “the government’s ownership of property does not automatically open that property to the public.”

The government has greater power to regulate expression when it acts as a proprietor controlling its internal operations than it does as a sovereign lawmaker. This means that government officials could limit protests inside a courthouse because the government has important operations to conduct. It must be able to control its operations to carry out its functions. The government must be able to carry on its own speech and expression free from interference. Contrast this with the public sidewalks two blocks from a courthouse. Here, the government cannot argue that it is conducting its own internal operations. Speech restrictions there would implicate a forum analysis and trigger a higher degree of judicial scrutiny.