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First Amendment FIRST AMENDMENT RELIGION AND FREE EXPRESSION CONTENTS Page Religion ....................................................................................................................................... 1065 An Overview ....................................................................................................................... 1065 Scholarly Commentary ................................................................................................ 1066 Court Tests Applied to Legislation Affecting Religion ............................................. 1068 Government Neutrality in Religious Disputes ......................................................... 1072 Establishment of Religion .................................................................................................. 1074 Financial Assistance to Church-Related Institutions ............................................... 1075 Governmental Encouragement of Religion in Public Schools: Released Time ...... 1095 Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading ..................................................................................................................... 1096 Governmental Encouragement of Religion in Public Schools: Curriculum Restriction ................................................................................................................ 1100 Access of Religious Groups to Public Property ......................................................... 1101 Tax Exemptions of Religious Property ...................................................................... 1103 Exemption of Religious Organizations from Generally Applicable Laws ............... 1104 Sunday Closing Laws .................................................................................................. 1105 Conscientious Objection .............................................................................................. 1106 Regulation of Religious Solicitation ........................................................................... 1107 Religion in Governmental Observances .................................................................... 1107 Religious Displays on Government Property ............................................................ 1108 Miscellaneous ............................................................................................................... 1113 Free Exercise of Religion ................................................................................................... 1114 The Belief-Conduct Distinction .................................................................................. 1117 The Mormon Cases ..................................................................................................... 1118 The Jehovah’s Witnesses Cases ................................................................................. 1119 Free Exercise Exemption From General Governmental Requirements ................. 1121 Religious Test Oaths ................................................................................................... 1131 Religious Disqualification ........................................................................................... 1132 Freedom of Expression—Speech and Press ............................................................................. 1132 Adoption and the Common Law Background .................................................................. 1132 Freedom of Expression: The Philosophical Basis ............................................................ 1138 Freedom of Expression: Is There a Difference Between Speech and Press? ................ 1140 The Doctrine of Prior Restraint ........................................................................................ 1142 Injunctions and the Press in Fair Trial Cases ......................................................... 1145 Obscenity and Prior Restraint ................................................................................... 1147 Subsequent Punishment: Clear and Present Danger and Other Tests ......................... 1148 Clear and Present Danger .......................................................................................... 1150 The Adoption of Clear and Present Danger .............................................................. 1153 Contempt of Court and Clear and Present Danger ................................................. 1154 Clear and Present Danger Revised: Dennis .............................................................. 1157 Balancing ..................................................................................................................... 1158 The “Absolutist” View of the First Amendment, With a Note on “Preferred Position” .................................................................................................................... 1162 1061 1062 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. Freedom of Expression—Speech and Press—Continued Subsequent Punishment: Clear and Present Danger and Other Tests—Continued Modern Tests and Standards: Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions ....................... 1164 Is There a Present Test? ............................................................................................. 1169 Freedom of Belief ............................................................................................................... 1170 Flag Salutes and Other Compelled Speech .............................................................. 1170 Imposition of Consequences for Holding Certain Beliefs ........................................ 1174 Right of Association ............................................................................................................ 1176 Political Association .................................................................................................... 1181 Conflict Between Organization and Members .......................................................... 1186 Maintenance of National Security and the First Amendment ....................................... 1190 Punishment of Advocacy ............................................................................................. 1191 Compelled Registration of Communist Party ........................................................... 1193 Punishment for Membership in an Organization That Engages in Proscribed Advocacy ................................................................................................................... 1194 Disabilities Attaching to Membership in Proscribed Organizations ....................... 1195 Employment Restrictions and Loyalty Oaths ........................................................... 1197 Legislative Investigations and the First Amendment .............................................. 1202 Interference With Vietnam War Effort ...................................................................... 1203 Suppression of Communist Propaganda in the Mails .............................................. 1204 Exclusion of Certain Aliens as a First Amendment Problem .................................. 1204 Material Support of Terrorist Organizations ................................................................... 1205 Particular Governmental Regulations That Restrict Expression ................................... 1206 Government as Employer: Political and Other Outside Activities ......................... 1206 Government as Employer: Free Expression Generally ............................................ 1209 Government as Educator ............................................................................................ 1217 Government as Regulator of the Electoral Process: Elections and Referendums . 1222 Government as Regulator of the Electoral Process: Lobbying ................................ 1239 Government as Regulator of Labor Relations .......................................................... 1240 Government as Investigator: Reporter’s Privilege ................................................... 1241 Government and the Conduct of Trials ..................................................................... 1243 Government as Administrator of Prisons .................................................................. 1247 Government and the Power of the Purse .................................................................. 1251 The Government Speech Doctrine ............................................................................. 1256 Governmental Regulation of Communications Industries .............................................. 1258 Commercial Speech ..................................................................................................... 1258 Taxation ........................................................................................................................ 1269 Labor Relations ........................................................................................................... 1271 Antitrust Laws ............................................................................................................ 1271 Broadcast Radio and Television ................................................................................. 1272 Governmentally Compelled Right of Reply to Newspapers ..................................... 1276 Cable Television .................................................................................................................. 1277 Government
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