The 1787 Project

This case explores the rise and fall of the so-called Lemon Test from the case of Lemon v. Kurtzman (1971). The Lemon Test was an important part of the Supreme Court's approach to the Establishment Clause for the last half century, but the recent case of American Legion v. American Humanist Association (2019) eschewed reliance on the Lemon Test and cast doubt on its continued relevance.

The First Amendment says that Congress shall make no law respecting an establishment of religion. What does that mean? This episode give a brief historical overview before looking at some of the landmark mid-century cases about religion in public schools as an entry point into the Supreme Court's modern Establish Clause jurisprudence .

Rounding out our discussion of the freedom of speech, this episode offers a brief recap and a rundown of the Supreme Court's First Amendment speech jurisprudence with a particular focus on the "bedrock principle" of content-neutrality in some of the recent decisions by the Roberts Court.

Through an analysis of Texas v. Johnson (1989) and R.A.V. v. City of St. Paul (1992), we explore the Supreme Court's insistence that the "bedrock principle underlying the First Amendment" is that "the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."

Does the First Amendment shield you from liability in state defamation cases for publishing false statements about someone else? Not entirely, but the Supreme Court's decision in the case of New York Times v. Sullivan (1964) makes it very difficult for a public figure to win a libel case. In a similar way, the case of Snyder v. Phelps (2011) makes it difficult to successfully prove the intentional infliction of emotional distress when someone is speaking in a public forum about matters of public concern.

This episode focuses on three foundational cases dealing with categories of disfavored speech and government suppression of speech: Chaplinsky v. New Hampshire (1942), Cohen v. California (1971), and United States v. O'Brien (1968).

In this episode we look at how the Supreme Court extended and modified the "clear and present danger" test from Schenck in the subsequent cases of Dennis v. United States (1951) and Brandenburg v. Ohio (1969). In Brandenburg, the Court says that the Constitution protects speech that advocates lawlessness or political violence unless that advocacy "is directed and is likely to incite or produce such action."

Charles Schenck wrote a pamphlet arguing that the military draft was immoral and unconstitutional. For that he was sentenced to six months in prison under the Espionage Act of 1917. In the case of Schenck v. United States (1919), a unanimous Supreme Court upheld the act against Schenck's First Amendment challenge and introduced the "clear and present danger" test into the Court's free speech jurisprudence.

This episode explores limits on the Supreme Court's substantive due process jurisprudence based on its emphasis on fundamental liberties deeply rooted in American history and its emphasis on the Fourteenth Amendment's limitations on state (rather than private) actions.

In a series of cases beginning with Lawrence v. Texas (2003) and ending with Obergefell v. Hodges (2015), the Supreme Court appealed back to the conception of liberty from Planned Parenthood v. Casey (1992) to bolster a Fourteenth Amendment right to marry that includes the right to marry someone of the same sex.