Constitutional Law II

Final Exam

Hajira Ahmed
Professor Jonathan Suh
POS 4604
May 5th, 2015
Freedom of Speech and Freedom of Religion are being discussed constantly over social
media recently due to several controversies. These policies are the part of the First Amendment;
yet, they are both often used as a winning argument to promote speech that becomes the root of
controversy. The First Amendments allows one to practice speech and religion, but it has two
types of restrictions. In intermediate scrutiny, speech is legal and appropriate only if the elements

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of time, place, and manner that speech is given is legal and appropriate. In strict scrutiny, the
content of speech should be appropriate; if the content of the speech is controversial, there must
be proof that there is clear and present danger for the speech to be illegal. For example, Spock
was handing out pamphlets on gay rights and gay marriage to the public, there was no indication
of where he was distributing material, but he was in a public space. Second, the time was
appropriate because the legalization of same-sex marriage is still a current hot topic. Lastly, in
the manner that Spock was handing these educational material without inciting a confrontation.
Strict scrutiny in speech is referred to the content of the material that Spock is distributing. There
was an indication that the content was inappropriate because the content was about gay marriage;
but, the material was also an educational pamphlet. So the content of the speech does not indicate
clear or present danger to the public. Yet,
Kirk is now a computer animator who creates sexually explicit content based off of Star
Blech, which depicts animated children. Star Blech is being financed by the Roddenberrys, a
religious group who believe in the worship of child images. Because of state laws in regards to
child pornography, the Roddenberrys limit their worship to virtual images instead of using
actual photographs of actual children. Mark Skywalker, the creator of Star Bores, believes that
Star Blech and the Roddenberrys are violating state laws against child pornography.
Skywalker initiates a pursuit along with Rigel County constable Harrison Solo to storm and
arrest all present members and seizes a membership list at the Roddenberry meeting, which leads
to a statewide arrest on anyone who was a Roddenberry.
Although, the Roddenberrys have the right to practice their religion, they chose to limit
their worship to virtual child imagery instead of photographs of actual children due to the state
laws against child porn. But, due to the fact that they are funding artwork that is sexual explicit

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and depicts child porn, the First Amendment does not apply. In a case regarding the free practice
of religion, the case Church of the Lukumi Babalu Aye v. City of Hialeah (1993), a religion that
has a mixture influence of African, Caribbean, and Roman Catholic roots. The most essential
practice in this religion is animal sacrifice; depending on the sacrifice, the priest would kill
almost thirty animals per sacrifice. The Hialeah community filed six ordinances to limiting the
animal sacrifice, which defined it as an unnecessary kil, torment, or mutilate an animal in a
public or private ritual or ceremony not for the purpose of food consumption (121). The
Supreme Court struck down the ordinances because the City of Hialeah ...had violated the free
exercise clause...no one doubted that the laws were passed to prohibit the practice of a particular
religious group. The Supreme Court decided this using the Sherbert-Yoder test, which
analyzes the compelling interest of the governments action against a religious practice. In 1993,
the Religious Freedom Reformation Act (RFRA) had been created to combine Sherbert-Yoder
and Smith test together. The RFRA was formed to ...expand protection of religious exercise by
restricting the use of government authority to regulate it. (121)
So, initially, Skywalker and Solo had violated the Roddenberrys religious freedom
because their religious practice, which is the worship of child images. In this worship, it does not
express whether the child images are different from the images produced by Kirk. The
distribution of pornography in general is strictly regulated. Obscenity is not protected by the First
Amendment, but it is defined by a test called the Miller test, which will test the following: the
Average person, offensive material, or lacking artistic, literary, political, or scientific value. In
Miller v. California (1973), the Supreme Court said that states are allowed to prohibit the
dissemination of obscene material, if it the material was sent to recipients that did not want to
see it or to children. Yet, the Roddenberrys are responsible for funding Star Blech, which is

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the creation of virtual, sexually explicit imagery of children, and it is in the compelling interest
of the government to take action against Kirk and the Roddenberrys. According to New York v.
Ferber (1982), in which Ferber had distributed two video tapes of child pornography. Ferber had
argued against the state, for violating the First Amendment and the material falls under the
Miller test. However, the Supreme Court had said that child porn is not under the Miller test. To
stop exploiting children and to prevent further justification to sexually abuse children; the State
of New York had prohibited the production and distribution of child pornography. Regardless of
whether the content had fallen under the Miller test or had followed the guideline definition of
being legally obscene. There are five reason why the court had decided that this was illegal: 1)
The State has an interest in safeguarding the physical and psychological well-being of a minor.
(357). 2) The distribution of child porn is:
...intrinsically related to sexual abuse of children in at least two ways...materials
produced are a
permanent record of the childrens participation and the harm to the child is exacerbated
by
their circulation must be closed if the production of material which requires the sexual
exploitations of children is to be effectively controlled. (357)
3) Advertising and selling child porn is giving an economic motive to produce more, when it is
already illegal throughout the Nation.
4) Permitting live performances of children doing explicit actions is considered as de minimis, or
too trivial to even be considered as a value in society. We consider it unlikely that visual
depictions of children performing sexual acts or lewdly exhibiting their genitals would often

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constitute an important and necessary part of a literary performance, or scientific or educational
work. (358).
5) Like obscenity, child porn in not protected by the First Amendment. Here the nature of the
harm to be combated requires that the state offense be limited to works that visually depict sexual
conduct by children below a specified age. (358) Even if it is only virtual imagery of children, it
still depicts children conducting lewd and sexual acts, and it is also being distributed among
members of the Roddenberrys sect, and of the Star Blech franchise. And regardless of
religious practice, the state has a compelling interest to take action against the Roddenberrys.
Meanwhile, Little Chekov and other child fans of Star Blech have started a protest
against the arrests. They spend all day in school with their fingers on their right hands in a V
position. Assuming this is a silent protest, it was able to garner attention from the school teachers
and administration. Some witnesses claim that a few teachers had argued with the protestors and
a disturbance in the hallway; others claim that there was no disruption that day. Yet, regardless of
even witness testimony, Little Chekov and the other children who protested were suspended from
school. Free speech is a policy in the First Amendment, but it is the content of that speech that
could make speech limited or not. The content of Chekovs protest was not explained, except for
the V sign that he uses with his right hand. Although, it was recognized as a disruption, it was
not engaged to harm others at the school. By 1937, the Supreme Court had ruled that peaceful
assembly for lawful discussions cannot be made a crime. There are five doctrine standards in
which free speech and protest is governed: 1) clear and present danger, 2) bad tendency, 3)
preferred freedom, 4) absolutism, 5) Ad Hoc Balancing, 6) clear and probable danger. Most
relevant to Chekovs case are the Clear and Present Danger Doctrine, which states: Whether
the words are used in such circumstances and are of such a nature as to create a clear and present

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danger that they will bring about substantive evils that Congress has a right to prevent. and the
Preferred Freedoms Doctrine, which states: There may be a narrower scope for operation of
the presumption of constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution, such as those of the first ten Amendments. (227). In that regard,
because Chekovs speech was not really speech, it can be deduced that it is symbolic speech.
Symbolic Speech is expressive conduct of ones beliefs. Chekov was symbolically
making a stand for the arrest of Kirk, the creator of Star Blech. He uses his hand to
symbolically form the V sign, the message or speech behind the sign in unknown, but because
it did not present any danger among other students, this speech is protected. Tinker v. Des
Moines Independent Community School District (1969), it was a controversial time because it
was the Vietnam War, a group of students had planned to wear armbands in protest, the school
feared that this would cause a disruption and had stated that all students who participate in this
protest will be suspended. Five students came forward and were suspended, thus bringing in a
lawsuit against the district. The issue was whether or not student speech in school is entitled to
First Amendment protections. The Supreme Court had ruled that even if students and teachers
should respect everyones opinion, they should not shed their constitutional rights outside of
school. The armbands represented pure speech, which is within the guidelines of the First
Amendment.
Little Chekov would have won that case because he was expressing his opinion about the
way that Rigel County police treated his father, James Kirk. Chekov was protesting peacefully
and not engaging or inciting any immediate breach of the peace, nor was he attempting to disrupt
the school by simple putting his hand up, shaped like a V. Perhaps it is the sci-fi counterpart of

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the real life symbolic speech for peace, which also requires a hand to make a V symbol in
order to display actual peace.