CHAPTER FouR • CiviL LibERTiEs 73
Free Exercise Clause
The provision of the First
Amendment guaranteeing
the free exercise of
religion.
Prior Restraint
Restraining an activity
before it has actually
occurred. When expression
is involved, this means
censorship.figures, and reindeer. A stand-alone crèche is not acceptable.^10 A related issue is whether
the Ten Commandments may be displayed on public property. As with nativity displays,
acceptability turns on whether the Ten Commandments exhibit is part of a larger secular
display or whether the context is overtly religious.The Free Exercise Clause
The First Amendment constrains Congress from prohibiting the free exercise of religion.
Does this free exercise clause mean that no type of religious practice can be prohibited
or restricted by government? Certainly, a person can hold any religious belief that he or
she wants, or a person can have no religious belief. When, however, religious practices
work against public policy and the public welfare, the government can act. For example,
regardless of a child’s or parent’s religious beliefs, the government can require vaccina-
tions. Additionally, public school students can be required to study from textbooks chosen
by school authorities.
Churches and other religious organizations are tax-exempt bodies, and as a result
they are not allowed to endorse candidates for office or make contributions to candi-
dates’ campaigns. Churches are allowed to take positions on ballot proposals, however,
and may contribute to referendum campaigns. For example, both the Latter-Day Saints
(the Mormons) and the Roman Catholic Church were able to fund the campaign for
California’s 2008 Proposition 8, a measure to ban same-sex marriage.
The Internal Revenue Service (IRS) rarely bothers to threaten the tax-exempt status
of a church based on simple candidate endorsements, however. For example, in October
2012, about 1,400 ministers collectively endorsed Republican presidential candidate Mitt
Romney in a deliberate challenge to the 1954 law that prohibits such endorsements. The
IRS did not respond. In 1995, however, the IRS did revoke the tax-exempt status of Branch
Ministries, Inc., and in 2000 a federal district court supported the revocation.^11 Branch
Ministries went far beyond simply endorsing a candidate from the pulpit. The church had
used tax-exempt income to buy newspaper advertisements denouncing Democratic presi-
dential candidate Bill Clinton.Freedom of Expression
Perhaps the most frequently invoked freedom that Americans have is the right to free
speech and a free press. Each of us has the right to have our say, and all of us have the
right to hear what others say. For the most part, Americans can criticize public officials and
their actions without fear of reprisal by any branch of our government.No Prior Restraint
Restraining an activity before that activity has actually occurred is called prior restraint.
When expression is involved, prior restraint means censorship, as opposed to subsequent
punishment. Prior restraint of expression would require, for example, that a permit be
obtained before a speech could be made, a newspaper published, or a movie or TV show
exhibited. Most, if not all, Supreme Court justices have been very critical of any govern-
mental action that imposes prior restraint on expression.- Lynch v. Donnelly, 465 U.S. 668 (1984).
- Branch Ministries v. Rossetti, 211 F.3d 137 (D.C.Cir. 2000).
LO3: Specify the limited
circumstances, including obscenity
and slander, in which the national
and state governments may
override the principles of free
speech and freedom of the press.9781285436388_04_ch04_066-091.indd 73 10/15/13 8:56 AM
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