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Here's what you should know about President-elect Donald Trump's Nov. 29 tweet calling for a ban on burning the U.S. flag. (Sarah Parnass/The Washington Post)

The president-elect woke up Tuesday morning with a clear agenda before him. Poised to announce his pick of Rep. Tom Price to lead the Department of Health and Human Services and with a day of meetings slated including one with onetime foe Mitt Romney Donald Trump hopped on Twitter to talk about where his attention was focused.

Disparaging CNN and more unexpectedly reigniting the once-virulent debate over flag-burning.

Where this came from is anybodys guess. (Update: Apparently it overlapped with a Fox News segment.) Theres an operating theory among some that Trump throws out tweets like this to distract attention from something else, as though 140-character messages demand our total (100 percent) brain capacity. On MSNBCs Morning Joe, host Joe Scarborough speculated that maybe Trump was tossing a bit of red meat to the angry social media lions before announcing that he would pick Romney as secretary of state.

The suggestions of this tweet and the context in which it was issued, though, make it far from just a simple distraction.

Flag-burning is not an issue that has occupied a central position in the American political consciousness of late. Its absolutely the sort of fight that Trump would relish, mind you, pitting egghead supporters of free speech and the First Amendment against the patriotism of people who find flag-burning unacceptable.

Some quick history is in order. Fights over how the flag is depicted have been fought at the Supreme Court for more than a century, including the 1989 decision Texas v. Johnson which established that burning the flag was a constitutionally protected act.

One of the justices who supported that 5-4 decision was Antonin Scalia, the jurist whose death earlier this year created the vacancy that it seems Trump will get to fill with someone, he has said, he hopes will be in the mold of Scalia. Scalia also voted to protect flag-burning when Congress passed a national law hoping to avoid the problems of Texas v. Johnson even though he found the practice to be repugnant.

If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag, he said last year, adding an important disclaimer: But I am not king. In an interview with CNN, he explained the distinction simply: Flag-burning is a form of expression, and therefore is protected by the First Amendment.

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

Congress has tried to work around the decision. Shortly afterward, it passed a law banning flag-burning, which was again thrown out (with Scalias agreement). A decade ago, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with now-Senate Majority Leader Mitch McConnell (R-Ky.) voting in opposition.

If there is a bedrock principle underlying the First Amendment, Justice William Brennan wrote in response to the decision to strike down the 1989 federal law, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Trump doesnt seem to adhere to this idea. He has railed against the oppositional media repeatedly, suggesting at one point that he might open up libel laws to make it easier to sue the media. He disparaged protests earlier this month as being incited by the press and being illegitimate because the protesters were paid (a claim for which theres no evidence). When protesters in Chicago disrupted one of his rallies, he suggested that they should be thrown in jail. His proposals to address the threat of terrorism often seem to tiptoe beyond the free-expression-of-religion boundaries established in the Bill of Rights.

When Trump finds free expression offensive or disagreeable, he seeks to curtail it and, in some cases, impose harsh penalties. The suggestion that those who burn flags should lose their citizenship is remarkable in part because its such a drastic response one that would itself rescind any number of legal protections to which the culprit would otherwise be entitled. Incidentally, this suggested punishment is barred as a result of a 1958 decision from the Supreme Court, as Louis Nelson notes at Politico.

Weve often seen Trump dash off a Twitter opinion that goes no further. Theres a fair argument to be made that, in the absence of any broader debate or proposed policy, this tweet about the flag should be treated as a curiosity. But it comes on the heels of Trump tweeting about how the results of the election should be questioned because of fraud (something that, again, lacks evidence). Its a pattern of pushing back against fundamental pillars of our democracy: elections, free speech, Supreme Court decisions. He has every right to do so, of course. If nothing else, thats important context. And it reinforces a desire to treat those who oppose him or his values harshly, even when he lacks the power to do so.

Why now? Who knows. Given the attention he has paid of late to casting his opponents in a negative light (like those claims about voter fraud that were the subject of his tweets Monday), perhaps he wants to force them to defend an unpopular position. Perhaps he even hopes that protesters will appear outside Trump Tower and burn flags. That certainly wouldnt hurt his efforts to rally support from otherwise indifferent Americans.

Anyway. Time for Trump to tick off the next items on his to-do list. Something about putting together a government? With the important stuff done, might as well move on to that.

More from The Fix:

Why we cant and shouldnt ignore Donald Trumps tweets

A running list of how Donald Trumps new position may be helping his business interests

Steve Bannon once suggested only property owners should vote. What would that look like?

See more here:
Donald Trump v. the First Amendment, Part 5

A Donald Trump presidency is raising concerns about First Amendment protections. Trump has accused the media of bias, limited access during his transition and spoken out against protesters. Meanwhile, the social media site Twitter purged hundreds of users associated with white supremacy. But what does the U.S. Constitution actually say about the right to free speech, expression and assembly?

Its been just a few weeks since Donald Trump was elected President of the United States and protests like this Tallahassee rally have occurred across the country. Ana Gomez, a Florida State University student, says in her native country of Cuba, rallies like this arent allowed, which is why she worries there could be a crackdown under the incoming administration.

"Its not so much the problem of what Trump would do; what a Pence vice presidency would do, Gomez said. Its more of the, what Mitt Romney called trickle down violencethe thing that there might not be accountability in places were there would be accountability before to deal with violence in our communities.

Across the street, theres another rally.

Listen to the story here.

Military Veteran Jay Mears is with a smaller group on the other side of the street. Mears said, Im counter-demonstrating a protest, any Trump protest, exercising my First Amendment rights to counter-protest. And do it peacefully. Both groups are exercising their First Amendment rights. Mears is not pleased about it, but as Rich Templin notes, the First Amendment protects both those who agree, and those who dont. Templin is the Legislative and Political Director of the Florida AFLCIO.

The First Amendment is what guarantees our ability to say, you know, our president stinks and is doing a terrible job.

It also is what guarantees the rights of our oppressed and our media to hold the media to hold government accountable and to serve as a watchdog, Templin said. It ensures that there is no establishment of a state religion, something that is connected to government.

But, Templin says certain First Amendment protections, such as the freedom of speech, dont mean freedom from consequence.

Templin continued, I dont think weve seen that, at least with the Trump campaign, and now with the Trump administration, not willing to accept that when you are saying these people are bad, as a class or these people should be banned, as a group, or as a class and then supporters go out, and act on that, and act as if these people are less than human, act as if these people pose a fundamental security challenge to the United States. And then nobody takes responsibility for it. Its just, oh, well thats just a troubled individual who was violent. I think that everybody has to take responsibility for what they say out loud in public.

Templin worries more about the clash of religion. Ongoing wars in the Middle East coupled with high profile terrorism attacks have generated a backlash against Muslims. The Supreme Courts decision to back gay marriage has been met with religious protection bills in state legislatures that some argue allow discrimination rather than protect against it.

Lets say we did have prayer in school. What prayer would it be? Templin asked. Which denomination would control the prayer that was allowed? Lets say that we did continue to blur the lines between Church and State. That would inevitably lead to one set of beliefs winning out over other sets of beliefs. Thats what this First Amendment was for, was to say, hey, were gonna keep religion out of the state because there will always be winners and losers, and we dont want people of faith to be losers. We just want the government to stay out of it, that way, they are protected.

Francine Huff, a journalism professor at Florida A&M University worries access to information is being eroded. She believes President Elect Donald Trumps restriction on media access coupled with his use of social media could become a problem.

The news industry as a whole has been struggling in recent years with exactly what is the future of the media industry, Huff said. I think that the Trump presidency is a game changer, I think his social media is something that has to be watched going forwardit certainly play a large role in his campaign.

Much of the campaign discourse as well as transition information is coming through the use of twitter. And the company made headlines when it booted users it says are associated with the Alt-Right. The move struck free speech advocates as wrong, but, American Civil Liberties Union Attorney Esha Bhandari says its important to understand the First Amendment protects against government action to restrict speech or protest.

Huff notes, twitter is a private company, saying, Private individuals remain free to engage in certain actions that the government cannot do when it comes to shutting down speech.

Bhandari says that in her line of work, its not about what she or her colleagues consider right or wrong--the ACLU stands behind the fundamental components of the First Amendment at all costs.

The ACLU will often represent groups that convey a message that we dont agree with, but because the principle is so important we think it's critical to stand up against government power and censorship in whatever form it takes.

The First Amendment protects you from having a religion imposed on you, just as it protects you to practice your own religion. It allows for people to assemble and protest. It protects freedom of speech, even speech some might not like. What it doesnt protect, however, is what happens next. The consequences. Perhaps this is something to keep in mind approaching this holiday season, filled with round tables of dissenting opinions.

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First Amendment On Solid Ground Despite Concerns About ...

Preamble

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

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First Amendment Rights - aclu.org

RELIGION

An Overview

Madison's original proposal for a bill of rights provision concerning religion read: ''The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.'' 1 The language was altered in the House to read: ''Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.'' 2 In the Senate, the section adopted read: ''Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .'' 3 It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ''respecting'' phraseology. 4 Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson who influenced him, is fairly clear, 5 but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

Scholarly Commentary .--The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. Story, who thought that ''the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,'' 6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. ''The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.'' 7

''Probably,'' Story also wrote, ''at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.'' 8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment. 9

This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education, 10 in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ''aid one religion'' or ''prefer one religion over another,'' but as well those that ''aid all religions.'' Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ''preferential'' governmental promotion of some religions, allowing general governmental promotion of all religion in general. 11 The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position. 12

Court Tests Applied to Legislation Affecting Religion .--Before considering the development of the two religion clauses by the Supreme Court, one should notice briefly the tests developed by which religion cases are adjudicated by the Court. While later cases rely on a series of rather well-defined, if difficult-to-apply, tests, the language of earlier cases ''may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.'' 13 It is well to recall that ''the purpose [of the religion clauses] was to state an objective, not to write a statute.'' 14

In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build ''a wall of separation between Church and State.'' 15 In Reynolds v. United States, 16 Chief Justice Waite for the Court characterized the phrase as ''almost an authoritative declaration of the scope and effect of the amendment.'' In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson's metaphor for substantial guidance. 17 But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action. 18 The concept of neutrality itself is ''a coat of many colors,'' 19 and three standards that could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards were part of the same formulation. ''The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.'' 20 The third test is whether the governmental program results in ''an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.'' 21 In 1971 these three tests were combined and restated in Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman, 22 and are frequently referred to by reference to that case name.

Although at one time accepted in principle by all of the Justices, 23 the tests have sometimes been difficult to apply, 24 have recently come under direct attack by some Justices, 25 and with increasing frequency have not been applied at all by the Court. 26 While continued application is uncertain, the Lemon tests nonetheless have served for twenty years as the standard measure of Establishment Clause validity and explain most of the Court's decisions in the area. 27 As of the end of the Court's 1991-92 Term, there was not yet a consensus among Lemon critics as to what substitute test should be favored. 28 Reliance on ''coercion'' for that purpose would eliminate a principal distinction between establishment cases and free exercise cases and render the Establishment Clause largely duplicative of the Free Exercise Clause. 29

Justice O'Connor has suggested that it is inappropriate to try to shoehorn all Establishment cases into one test, and has called instead for recognition that different contexts may call for different approaches. Supp.1 For example, the Justice proposes that cases involving government ''speech'' on religious topics be judged by an endorsement test that would invalidate government actions only if a reasonable observer would perceive the action as an endorsement or disapproval of religious belief. Supp.2

Government Neutrality in Religious Disputes .--One value that both clauses of the religion section serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schism sometimes develops within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to have control of the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.

The first such case was Watson v. Jones, 30 which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral, 31 in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion ''radiates . . . a spirit of freedom for religious organizations, and independence from secular control or manipulation--in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'' 32 The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: if the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail. 33 On the other hand, a court confronted with a church property dispute could apply ''neutral principles of law, developed for use in all property disputes,'' when to do so would not require resolution of doctrinal issues. 34 In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was ''at the core of ecclesiastical affairs'' and a court could not interpret the church constitution to make an inde pendent determination of the power but must defer to the interpretation of the body authorized to decide. 35

In Jones v. Wolf, 36 however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the ''true congregation'' of the local church and awarded them authority over it. The Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church's constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregation. 37 Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter. 38 The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted the ignoring of the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church. 39

Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems to have approved at least an indirect limitation of the authority of hierarchical churches. 40

Footnotes

[Footnote 1] 1 Annals of Congress 434 (June 8, 1789).

[Footnote 2] The committee appointed to consider Madison's proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: ''No religion shall be established by law, nor shall the equal rights of conscience be infringed.'' After some debate during which Madison suggested that the word ''national'' might be inserted before the word ''religion'' as ''point[ing] the amendment directly to the object it was intended to prevent,'' the House adopted a substitute reading: ''Congress shall make no laws touching religion, or infringing the rights of conscience.'' 1 Annals of Congress 729-31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison's biographer, ''[t]here can be little doubt that this was written by Madison.'' I. Brant, James Madison--Father of the Constitution 1787-1800 at 271 (1950).

[Footnote 3] This text, taken from the Senate Journal of September 9, 1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary History 1153 (1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.

[Footnote 4] 1 Annals of Congress 913 (September 24, 1789). The Senate concurred the same day. See I. Brant, James Madison--Father of the Constitution 1787-1800, 271-72 (1950).

[Footnote 5] During House debate, Madison told his fellow Members that ''he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.'' 1 Annals of Congress 730 (August 15, 1789). That his conception of ''establishment'' was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, ''comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that 'Congress shall make no law respecting a religious establishment.''' 8 The Writings of James Madison (G. Hunt. ed.) 132-33 (1904). Madison's views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his ''Memorial and Remonstrance against Religious Assessments'' setting forth his thoughts. Id. at 183-91; I. Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson's ''Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the Virginian 274-280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.

[Footnote 6] 3 J. Story, Commentaries on the Constitution of the United States 1865 (1833).

[Footnote 7] Id. at 1873.

[Footnote 8] Id. at 1868.

[Footnote 9] For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224-25 (3d ed. 1898).

[Footnote 10] 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.

[Footnote 11] Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a ''constitutional tradition'' in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).

[Footnote 12] Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O'Connor, concurring).

[Footnote 13] Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).

[Footnote 14] Id.

[Footnote 15] 16 The Writings of Thomas Jefferson 281 (A. Libscomb ed., 1904).

[Footnote 16] 98 U.S. 145, 164 (1879).

[Footnote 17] Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211 , 212 (1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief Justice Burger remarked that ''the line of separation, far from being a 'wall,' is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship.'' Similar observations were repeated by the Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ''wholly accurate''; the Constitution does not ''require complete separation of church and state [but] affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any'').

[Footnote 18] Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694 -97 (1970) (Justice Harlan concurring). In the opinion of the Court in the latter case, Chief Justice Burger wrote: ''The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.'' Id. at 669.

[Footnote 19] Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concurring).

[Footnote 20] Abington School District v. Schempp, 374 U.S. 203, 222 (1963).

[Footnote 21] Walz v. Tax Comm'n, 397 U.S. 664, 674 -75 (1970).

[Footnote 22] 403 U.S. 602, 612 -13 (1971).

[Footnote 23] E.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting opinion).

[Footnote 24] The tests provide ''helpful signposts,'' Hunt v. McNair, 413 U.S. 734, 741 (1973), and are at best ''guidelines'' rather than a ''constitutional caliper;'' they must be used to consider ''the cumulative criteria developed over many years and applying to a wide range of governmental action.'' Inevitably, ''no 'bright line' guidance is afforded.'' Tilton v. Richardson, 403 U.S. 672, 677 -78 (1971). See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice Blackmun dissenting).

[Footnote 25] See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636 -40 (1987) (Justice Scalia, joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the ''purpose'' test); Wallace v. Jaffree, 472 U.S. 38, 108 -12 (1985) (Justice Rehnquist dissenting); Aguilar v. Felton, 473 U.S. 402, 426 -30 (1985) (Justice O'Connor, dissenting) (addressing difficulties in applying the entanglement prong); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 -69 (Justice White concurring in judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged criticisms of the Lemon tests, while at the samed time finding no need to reexamine them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 -56 (1989). At least with respect to public aid to religious schools, Justice Stevens would abandon the tests and simply adopt a ''no-aid'' position. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).

[Footnote 26] See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers on the basis of historical practice); Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider Lemon because the practice of invocations at public high school graduations was invalid under established school prayer precedents); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (upholding provision of sign-language interpreter to deaf student attending parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect). The Court has also held that the tripartite test is not applicable when law grants a denominational preference, distinguishing between religions; rather, the distinction is to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S. 228, 244 -46 (1982).

[Footnote 27] Justice Blackmun, concurring in Lee, contended that Marsh was the only one of 31 Establishment cases between 1971 and 1992 not to be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.

[Footnote 28] In 1990 Justice Kennedy, joined by Justice Scalia, proposed that ''neutral'' accommodations of religion should be permissible so long as they do not establish a state religion, and so long as there is no ''coercion'' to participate in religious exercises. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260 -61. The two Justices parted company, however, over the permissiblity of invocations at public high school graduation ceremonies, Justice Scalia in dissent strongly criticizing Justice Kennedy's approach in the opinion of the Court for its reliance on psychological coercion. Justice Scalia would not ''expand[ ] the concept of coercion beyond acts backed by threat of penalty.'' Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice Rehnquist has advocated limiting application to a prohibition on establishing a national (or state) church or favoring one religious group over another. Wallace v. Jaffree, 472 U.S. 38, 98 , 106 (1985) (dissenting).

[Footnote 29] Abington School District v. Schempp, 374 U.S. 203, 222 -23 (1963). See also Board of Education v. Allen, 392 U.S. 236, 248 -49 (1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (''a literal application of the coercion test would render the Establishment Clause a virtual nullity'').

[Footnote 1 (1996 Supplement)] Board of Educ. of Kiryas Joel Village v. Grumet,114 S. Ct. 2481, 2498-99 (1994).

[Footnote 2 (1996 Supplement)] Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2500 (1994) (concurring).

[Footnote 30] 80 U.S. (13 Wall.) 679 (1872).

[Footnote 31] 344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective ''First Amendment'' designation.

[Footnote 32] Id. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).

[Footnote 33] Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447 , 450-51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).

[Footnote 34] Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368-70 (Justice Brennan concurring).

[Footnote 35] The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720 -25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. The Serbian Eastern Court disapproved of this inquiry with respect to concepts of ''arbitrariness,'' although it reserved decision on the ''fraud'' and ''collusion'' exceptions. 426 U.S. at 708 -20.

[Footnote 36] 443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and Chief Justice Burger.

[Footnote 37] Id. at 602-06.

[Footnote 38] Id. at 606-10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.

[Footnote 39] Id. at 610.

[Footnote 40] The Court indicated that the general church could always expressly provide in its charter or in deeds to property the proper disposition of disputed property. But here the general church had decided which faction was the ''true congregation,'' and this would appear to constitute as definitive a ruling as the Court's suggested alternatives. Id. at 606.

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Annotation 1 - First Amendment - FindLaw

Monday, September 16, 2002

The First Amendment played a crucial role in the epic struggles of the civil rights movement of the 1950s and 60s, when Dr. Martin Luther King Jr. and countless others engaged in sit-ins, protests, marches and other demonstrations to force social change.

The rights of free speech and assembly enabled civil rights protesters on the streets of Birmingham and Selma, Ala., and other cities throughout the South to force society to improve the treatment of African-Americans.

The First Amendment right of assembly was the foundation of the civil rights movement of the 1950s, said Western Kentucky University journalism professor Linda Lumsden, who has written on the role of freedom of assembly in the womens-suffrage movement.

The civil rights movement featured various forms of free expression, University of Columbia law professor Jack Greenberg said in an interview in 1999.

Greenberg, who served as the director-counsel of the NAACP Legal Defense and Educational Fund, Inc. from 1961 until 1984, listed the petition for redress of grievances by students in Columbia, S.C., the march from Selma to Birmingham, the freedom rides, the sit-ins and the demonstrations in Birmingham as prime examples of civil rights advocates engaging in First Amendment-protected activities.

University of Pennsylvania professor Robert Richards, author of Freedoms Voice: The Perilous Present and Uncertain Future of the First Amendment, agreed that the First Amendment was the key tool of the civil rights movement.

Without the First Amendment and the protections breathed into it by the courts, the movement would not have flourished as much as it did, Richards said.

Lumsden said that the peaceful, nonviolent protesting raised public consciousness, challenged peoples beliefs and attacked the forces of power.

The Supreme Court is influenced by the cultural, political and societal influences of the times, Lumsden said. It helped the civil rights protesters that their cause was so sympathetic.

Not only was the First Amendment essential to the civil rights movement, but the movement itself also galvanized First Amendment ideals into legal precedent. In his 1965 book The Negro and the First Amendment, legal scholar Harry Kalven foresaw the unique changes in First Amendment law that would grow out of the civil rights movement.

In fact, Kalven wrote, We may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us, a reference to civil liberties sacrificed during the anticommunist red scare era of the 1950s and early 60s.

First Amendment expert Robert ONeil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said many areas of First Amendment law were shaped by the civil rights movement.

The sources of pressure created by the civil rights movement coincided at a time when the courts were receptive to the expansion of First Amendment principles, ONeil said.

The cases that grew out of civil rights-era activism clearly show the force of the First Amendment in persuading the Supreme Court to issue rulings in favor of the demonstrators. Nearly all the cases involving the civil rights movement were decided on First Amendment grounds, Greenberg said.

Margaret Blanchard, the William Rand Kenan journalism professor at the University of North Carolina, said that the civil rights protesters broke new ground in organizing together for certain causes, using various kinds of symbolic expression and emphasizing the right to march.

Blanchard said numerous court decisions across the country sided with civil rights protesters who challenged parade ordinances. The ordinances vested too much power in city officials who could and sometimes would deny permits because they disliked the group or its cause.

The Supreme Court issued several rulings protecting civil rights advocates from criminal charges for engaging in First Amendment-protected activity. In the 1963 decision Edwards v. South Carolina, the high court struck down the breach-of-the-peace convictions of 187 African-American students who marched to the South Carolina Statehouse carrying signs with messages such as Down with Segregation.

Saying the circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form, the Court ruled that the government could not criminalize the peaceful expression of unpopular views.

In its 1961 decision Garner v. Louisiana, the court overturned the disturbing-the-peace convictions of five African-Americans who engaged in sit-ins at an all-white caf counter in Baton Rouge. In his concurring opinion, Justice John Harlan wrote that a sit-in demonstration is as much a part of the free trade of ideas as is verbal expression.

Harlan wrote that a sit-in was entitled to the same level of First Amendment protection as displaying a red flag as a symbol of opposition to organized government, a form of expression that the Supreme Court protected in the 1931 case Stromberg v. People of California.

Numerous other First Amendment-related Supreme Court decisions stemmed from events during the civil rights movement. Among these cases ONeil lists NAACP v. Alabama (1958), which protected the free-association rights of NAACP members from official harassment, and NAACP v. Button (1963),which ensured access to courts and protected the associational freedoms of public-interest groups.

In NAACP v. Alabama, state officials demanded the names and addresses of all the members of the National Association for the Advancement of Colored People of Alabama. But the Supreme Court held that compelling the disclosure of membership lists would violate members First Amendment free-association rights.

The high court wrote that privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.

UNCs Blanchard said, NAACP v. Alabama established the right of people to join together to advocate causes even in hostile environments.

Five years later, in NAACP v. Button, the Supreme Court ruled that the NAACP had the right to refer individuals who wanted to sue in public school desegregation cases to lawyers and to pay their litigation expenses. (This case also relates to the First Amendment freedom of petition, and is covered in that section.)

A Virginia law had forbidden any organization from compensating an attorney in a case in which it had no direct monetary interest, and also had forbidden organizations from intervening between lawyer and client. State officials charged the NAACP with violating these rules by encouraging people to become plaintiffs in desegregation cases, referring them to private attorneys and then paying their litigation expenses.

However, the Supreme Court ruled that the NAACPs actions were modes of expression and association protected by the First Amendment.

Greenberg called Button extraordinarily important because it represented the beginning of the public-interest law firm.

It is also worth noting, though it did not involve freedom of assembly, that another landmark First Amendment-related case, New York Times Co. v. Sullivan, grew out of the civil rights movement. That 1964 case bolstering press freedom is discussed in the press section.

Each of these cases demonstrates the role that the First Amendment played in the civil rights movement and likewise shows the important role that the civil rights movement played in the development of First Amendment freedoms.

It is likely that the same First Amendment doctrines would not have developed at the same rate and with the same force or conviction were it not for the civil rights movement, ONeil said.

The Supreme Court in these various rulings strengthened peoples right to assemble peaceably as well as to speak out and petition government in protest against injustices.

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