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Mooting Legal Issues

Religion and SpeechIn America

Theme created bySakari Koivunen and Henrik OmmaReleased under the LGPL license.

Where to Start

You will be mooting the topic your group discussed yesterday.

Divide your group into teams of two and choose a side.One group will also have to select a judge.

Look at topics page on the class website for resources.

The issue is one that you have already discussed yesterday.


The case you are mooting was an actual case already decided by the Court.

The facts of your case can be found in the majority opinion.I would start here, then start looking at the other resources on the website, and then read the majority and dissenting opinions.

Pick out only the most important when creating facts for oral argument.


You have already begun this process.

Arguments for each side can found in:The various resources I have provided you

The opinions from the actual cases

Other sources if you wish to expand your search.

School Prayer

Whether a public school that includes prayers as part of a graduation ceremony violates the Establishment Clause of the First AmendmentBased on Lee v. Weisman (1992)

"Congress shall make no law respecting an establishment of religion . . . ." U.S. Const., Amend. I.

What does this mean?

Legal Principles at Issue

Legal Principles at Issue: The Establishment Clause has been interpreted as a guarantee that the government may not (1) coerce anyone to support or participate in religion or (2) establish a state religion or faith. Lynch v. Donnelly, 465 U.S. 668 (1984).

One test frequently used by the Court to evaluate whether a governmental practice or regulation violates the Establishment Clause was set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971):whether the practice or regulation lacks a clearly secular purpose, and whether it has the primary effect of advancing or inhibiting religion.



Find arguments in both majority and dissenting opinions and use these to structure your arguments.

The first counsel could argue about whether this amounts to coercion

The second counsel to focus on applying the Lemon TestSecular Purpose

Endorse Religion this looks at effects


Engle v. VitaleCourt strikes down prayer in school claiming children need to be protected from government coercion.NOTE this case was decided before Lemon

Wallace v. JaffreyCourt strikes down law authorizing 1 minute of silence before school for meditation.NOTE the Court applies Lemon to this prayer case.

Things to Note

We are dealing with school children!The court has normally said they need more protection from religious indoctrination.See Vitale

However, we are dealing with an event that is not part of the regular school day!Does this make it different from Vitale and Wallace?

Religious Symbols

The Texas Case

Question Presented: Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?"

Religious Symbols

The Kentucky CaseWhether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular.

Whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by a court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols.

Things to Consider

Do these displays have a secular purpose?If yes, then unconstitutional.

Do these displays endorse a particular religion?If yes, then unconstitutional

OR, should we use a test similar to the school prayer cases and be talking about coercion?

Additional Items of Note

The courts have dealt with this issue in an inconsistent manner.

The courts have also acknowledged the historical role that religion has played in the U.S.Look at a dollar

Attend a session of Congress

Thanksgiving, Christmas, the Pledge of Allegiance, the Picture in the U.S. Supreme Court itself!

Additional Items of Note

The monument was donated to the state by a group trying to fight juvenile crime.

The Park in which the monument sits has several other historical displays.

The monument has been there, unchallenged for almost 40 years!

The Precedent

Lynch v. Donnelly Court upholds religious display that is part of secular display.

Stone v. Graham Court orders removal of Ten Commandments from school, saying the placement of them there has no other purpose than to promote religion.

County of Allegheny v. ACLUNOTE read this case closely to see how judges apply different test.

What About This?

Symbolic Speech

"Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. Const., Amend. I.

What is Speech?

What happens when government seeks to regulate conduct that also has elements of speech in it?Threats, for example.

Flag Burning

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?Conduct or speech or both?

Can government regulate conduct even when done to communicate a message?

Is the flag special?

Flag Burning

U.S. v. O'Brien

we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

How to Approach This

Is this speech?minor but important point that must be addressed first.

Can the government regulate this kind of speech?Is this a regulation of the content of speech?If yes, then regulation is held to the most exacting scrutiny

Compelling Interest

Necessary to Serve that Interest

How to Approach This

Can the government regulate this kind of speech?Is the the government in prohibiting the ACT unrelated to the suppression of speech?see O'Brien.

Student Free Speech

Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?


Tinker v. Des Moines Independent Community School District (1969)

Bethel School District No. 403 v. Fraser (1986)

Hazelwood School District v. Kuhlmeier (1988).


Students suspended for wearing black armbands.

Court found students have free speech rights.

Court also found school can regulate substantially disruptive speech.Which is different than what government can normally do.


Student was punished for giving election speech filled with sexual innuendo

Court held that schools can regulate offensive and disruptive speech.


Court held that schools did not have to provide students with forums to speak.

When they did, then students had less First Amendment protection.

School can regulate speech in school-sponsored forum if it advances legitimate educational purpose.

Things to Consider

Was he actually at school? Should that make a difference?

Did the sign promote drugs?If so, does that automatically make it something that the school can regulate?

Or must the school still show that the sign was disruptive?

Was this school event analogous to a school newspaper?

Keep In Mind

This is very fact sensitive, thus understanding the facts are important.

Really only three cases apply. Thus drawing analogies and distinctions to the cases are important.

This is all about the school being able to keep control and educate children now and in the future.

Violent Video Games

Can a state ban the sale of violent video games to minors, and if so, must the state prove that violent video games directly cause physical and psychological harm to minors for the ban to be constitutional?

How to Approach This

Is this speech?

Should the court create an exception for this speech?see Ginsberg

If this is speech and no exception applies, what must the government to show under strict scrutiny?compelling interest

necessary to serve this interest


I have given you the legal briefs as there is no Supreme Court decision to give you.These briefs can be dense. Try not to go too deep.

Try to pick out answers to the questions I posed in the previous slide.

One of the cases I have given you is a Court of Appeals case.remember, this is NOT binding on the Court, but it may provide you with arguments.

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