Does the First Amendment protect graduation prayer?

The U.S. Supreme Court ruled 5 to 4 in Lee v. Weisman (1992) that school-sponsored graduation prayer violates the First Amendment. The majority focused on the coercive pressure placed on students at graduation who did not adhere to the same religion as the religious figure giving the graduation prayer. The majority also noted that students at graduation were a captive audience who essentially had no choice as to whether to hear the prayer or not.

What was the Santa Fe Independent School District v. Doe case on school prayer and what did the U.S. Supreme Court decide?

The 2000 U.S. Supreme Court decision on school prayer was a case involving prayers announced over a loudspeaker at Texas high school football games. In Santa Fe Independent School District v. Doe, the Court ruled 6 to 3 that the practice violated the Establishment Clause in part because most observers would believe that the school was endorsing religion. Even though the student body voted on whether to have the prayers or not, the Court reasoned that the policy meant that majoritarian religious preferences would also trump those of the minority.

Justice John Paul Stevens (majority): "The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school's public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot."

Chief Justice William H. Rehnquist (dissenting): "The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause."

What is obscenity and pornography, and what is art? Should the First Amendment protect all forms of speech? (iStock)

What is obscenity and pornography, and what is art? Should the First Amendment protect all forms of speech? (iStock)

Does the First Amendment protect all forms of free speech?

No, the First Amendment does not protect all forms of speech even though the text of the amendment provides that "Congress shall make no law . abridging the freedom of speech." The First Amendment does not protect many forms of speech. Some examples include obscenity, child pornography, incitement to imminent lawless action, perjury, true threats, libel, and solicitation to commit murder.

What is obscenity?

Obscenity refers to hard-core pornography that goes beyond so-called contemporary community standards. Obscenity is judged by the so-called "Miller test" from the U.S. Supreme Court's 1973 decision Miller v. California (1973). The Miller test requires that material appeal predominately to the prurient (morbid or shameful) interest in sex, depict sexual material in a patently offensive way and have no serious literary, artistic, political, or scientific value.

For example, a federal district in Florida held that a rap music album filled with profanity and misogynistic language constituted obscenity. On appeal, the 11th U.S. Circuit Court of Appeal reversed and determined that the album As Nasty as They Wanna Be by the 2 Live Crew did not constitute obscenity, because the music (though profane) had some serious artistic value. Attorneys for the defendant produced several expert witnesses who testified as to the material's serious artistic value.

The U.S. Supreme Court in Miller stated:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, that concept has never commanded the adherence of more than three Justices at one time.... If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary..

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

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