Category: University of Cincinnati College of Law

Constitutional Law II #31: Public Displays and Free Exercise

In this, our final episode for Constitutional Law II, we will examine public religious displays (such as nativity scenes and the Ten Commandments), as well as briefly consider the Free Exercise of religion.

Lynch v. Donnelly (SCOTUS, 1984)
Allegheny County v. Greater Pittsburgh ACLU (SCOTUS, 1989)
Stone v. Graham (SCOTUS, 1980)
McReary County v. ACLU of Kentucky (SCOTUS, 2005)
Van Orden v. Perry (SCOTUS, 2005)
Smith v. Employment Division (SCOTUS, 1990)

Constitutional Law II #30: More Tests and School Prayer

In this episode we will examine the coercion test, the history / tradition test, the “stupid legislator” test, as well as briefly examining school prayer and the pledge of allegiance.

Marsh v. Chambers (SCOTUS, 1983)
Lee v. Weisman (SCOTUS, 1992)
Santa Fe Independent School District v. Doe (SCOTUS, 2000)
Wallace v. Jaffree (SCOTUS, 1985)
Elk Grove Unified School District v. Newdow (SCOTUS, 2004)

Constitutional Law II #29: Establishment and School Funding

Can the state provide funding to a private, religious school? The answer, as in many situations is, “it depends.” In this episode we’ll look at some of the various ways that private-school funding has been deemed an establishment, and other ways in which it was not.

Committee for Public Education v. Nyquist (SCOTUS, 1973)
Mueller v. Allen (SCOTUS, 1983)
Grand Rapids School District v. Ball (SCOTUS, 1985)
Auguilar v. Felton (SCOTUS, 1985)
Agostini v. Felton (SCOTUS, 1997)
Zelman v. Simmons-Harris (SCOTUS, 2002)

Constitutional Law II #28: Introduction to Establishment

We now turn to our final topic in Constitutional Law II, the Religion Clauses. The clauses protect the free exercise of religion, as well as ensuring against the establishment of a religion (aka “separation of church and state”). We will talk a bit about the historical context of the Religion Clauses, as well as two foundational cases.

Thomas Jefferson’s letter to the Danbury Baptists
Everson v. Board of Education (SCOTUS, 1947)
Lemon v. Kurtzman (SCOTUS, 1971)

Constitutional Law II #27: Defamation

Defamation is another type of “speech” that is often said as being outside the 1st Amendment. In this episode we briefly look at the substantive aspects of defamation, as well as the constitutional requirements of proof before a defamation cause of action can proceed against a public figure.

NY Times Co. v. Sullivan (SCOTUS, 1964)
Gertz v. Robert Welch, Inc. (SCOTUS, 1974)

Constitutional Law II #25: Indecent Speech I

Often times speech will not rise to the level of “obscene”, but will be considered “indecent.” (For example, it could be considered obscene as to minors.) When public broadcasting is concerned, there are certain regulations that the state can place on this speech. I also advocate examining these regulations based upon a commons model, allowing the government to regulate indecency only when the medium technologically requires the government to establish licenses for using the medium.

Young v. American Mini Theatres, Inc. (SCOTUS, 1976)
FCC v. Pacifica Foundation (SCOTUS, 1978)
Sable Communication of CA, Inc v. FCC (SCOTUS, 1989)

Constitutional Law II #24: Obscenity

Obscenity is often said to be outside the 1st Amendment. In this episode we will look at the policies and arguments that underly not protecting obscenity, the historical (and continuing) difficulty in defining exactly what obscenity is, as well as the current test for obscenity.

Wikipedia article on Robert Mapplethorpe
Roth v. United States (SCOTUS, 1957)
Ginzburg v. United States (SCOTUS, 1966)
Miller v. California (SCOTUS, 1973)
Paris Adult Theatre I v. Slaton (SCOTUS, 1973)

Constitutional Law II #22: State-Funded Speech

When the government pays for speech, it is also given additional leeway in crafting the conveyed message. Examples are government employees and those receiving government funding.

Rust v. Sullivan (SCOTUS, 1991)
Rosenburger v. Rector and Visitors of University of Virginia (SCOTUS, 1995)
United States v. American Library Association, Inc. (SCOTUS, 2003)

Constitutional Law II #21: Speech in Schools

In restricted environments, such as militaries, prisons, and schools, the government is given slightly more leeway to restrict speech. In this episode we will examine the rules that apply to schools.

Tinker v. Des Moines Independent Community School District (SCOTUS, 1969)
Bethel School District v. Fraser (SCOTUS, 1986)
Hazelwood School District v. Kuhlmeier (SCOTUS, 1998)