Franciszek Longchamps de Bérier

Textbook on the First Amendment:

Freedom of Speech
And Freedom of religion

Copyright © Franciszek Longchamps de Bérier

Cover design: Paweł Krzywda, www.idee.pl

Typographic layout: Wydawnictwo OD.NOWA Spółka jawna

Layout and editorial coordination: Wydawnictwo OD.NOWA Spółka jawna

Wydawnictwo OD.NOWA

ul. Mieszka I 38

43-300 Bielsko-Biała

e-mail: biuro@wydawnictwo-odnowa.pl

www.wydawnictwo-odnowa.pl

ISBN 978-83-66265-36-3

Konwersja do epub i mobi  A3M

In memory of Zygmunt Nagórski

Table of Contents

Preface

I. Freedom of Speech

1. Introduction

2. Free Speech Methodology

3. A Page of History

4. Inviting a Heckler’s Veto?

5. Prtotected and Unprotected Speech

6. Disclosure of Confidential Information

7. Freedom of the Press

8. Protecting Minors

II. Freedom of religion

1. Introduction

2. The Incorporation Doctrine and the Religion Clauses

3. Permissible Accommodation and Impermissible Establishment

4. Theories ofthe Establishment Clause

5. Government and Religion

6. The Legal Concept of Standing as the Main Justiciability Requirement

7. The Free Exercise Clause

8. Religious Speech

The Constitution of the United States

Preface

Freedom always comes with a price. This applies to freedom of speech and freedom of religion. The crucial point is who has to pay the price. Freedom cannot defend itself. It needs witnesses, martyrs and, above all, guardians and protectors. In the United States, freedom of speech and freedom of religion are considered basic freedoms because they were enshrined in the First Amendment to the Constitution. This textbook is about respect for and appreciation of these two freedoms, and consists of cases that have appeared before American courts. The United States Supreme Court is the ultimate defender of liberty and the pre-eminent guardian of these two freedoms, which is why the overwhelming majority of cited sentences are from that Court.

Twenty years ago I was awarded an LL.M. by Georgetown University Law Center where I was able to study thanks to a scholarship granted by Mr. Zygmunt Nagórski. Following the graduation ceremony at the main campus on 25 May 1992, I asked how I could show him my gratitude and he suggested that I should – perhaps sometime in the future help others obtain an education. When I returned to Poland, I was offered a post in the Faculty of Law and Administration of the University of Warsaw, and I prepared two courses in American law in addition to my regular Roman law courses. In Warsaw, and later at the Jagiellonian University in Kraków, I focused on the freedom of religion and freedom of speech in United States Supreme Court jurisprudence. This textbook is the result of my ten years’ experience of teaching about the First Amendment to the United States Constitution. The textbook provides materials for discussion and consists only of selected opinions of American courts which have been abridged to enucleate the main problem and not burden the reader with all the details, and also to avoid discussing legal issues that are not directly related to the present subject matter. This manner of presenting law by choosing and collecting together legal opinions has a long tradition. It was used by Justinian’s compilers, who collected the work of Roman jurists in his famous Digest of AD 533. I decided to choose this form because I believe it is the best way of introducing jurisprudential discussion. The selected extracts will enable readers to join in the discussion by allowing them to form their own point of view and consider all the possible arguments that could be raised in each case.

The study of American cases pertaining to the freedom of speech and freedom of religion is a good introduction to common law and the legal methods of American courts as well as American legal language. Issues related to freedom of religion and freedom of speech are well-known even to the average freshman, therefore everyone can form his or her own opinion on how a conflict should or could be resolved by a court. Sentences passed by the Supreme Court of the United States are extremely convenient for encouraging such debate. The Court’s opinion, which is usually extensive and considers all the important factual and legal issues of the case, is often accompanied by the concurring and dissenting opinions of the justices. These opinions illustrate almost all the possible ways of interpreting a case and appear instructive not only from the perspective of acquaintance with a particular line of precedence. They provide us with a general education in American law and the jurisprudential framework that could be applied to any legal system where liberties need to be protected. The decisions taken by the Court – be they positive or negative – are an example to European lawyers. Even though this book is largely a ‘cut and paste’ of cases, it still presents the author’s point of view. The selected cases and choice of texts reflects his perception of the complex issues related to freedom of speech and religious freedom. I decided to cite cases that could be of interest and use to European lawyers. But I have endeavoured to present to them as impartially as possible, the questions and problems that arise in American law, and to make this book about the work of the Supreme Court as the guardian of the First Amendment and not about my understanding of it.

The problems and challenges to these two freedoms are almost the same on both sides of the Atlantic Ocean. It may sometimes be easier to discuss them based on American, i.e. seemingly distant examples, than on current issues that give rise to strong emotions. ‘The American example’ thus becomes a parable of the law and of freedom, particularly of the freedom of speech and freedom of religion. It is a parable that can be either understood or ignored.

Franciszek Longchamps de Bérier

Wrocław, 25 May 2012