Nellie Bowles of the Free Press on Thanksgiving This Year

 "I'm thankful this year for the First Amendment. I never understood how precious it was, or how rare, but watching European countries send cops to people's houses for barely controversial Facebook posts has shocked me." 

Not to mention people being arrested in the UK for silently praying on the sidewalks in front of abortion clinics. Silently praying is a thought crime in Great Britain!

Bowles is right. American exceptionalism is real and free speech is one of the most important features of American exceptionalism. But even here, the First Amendment is under attack by elites who are shocked to learn that not everyone believes what they believe. 

But we have a Supreme Court whose First Amendment jurisprudence is the strongest sign of American exceptionalism. So I am also thankful this year for the First Amendment, and for the Court that supports and defends it.

Optional Exam Review Session: Monday December 2

 I plan to hold an optional exam review session on Monday December 2 during our regular class time and place. Our exam is December 9, so December 2 is the best date for this session. 

And remember what I told you in class--the exam will not cover the last materials we discussed on pornography and obscenity under the First Amendment. The law is too vague to hold you responsible for and I have no desire to write a question describing in detail material challenged as obscene.

A Closing Thought

 I really enjoyed teaching First Amendment this semester. We learned a lot, had a lot of fun, and, I hope, came to understand why the First Amendment is the first freedom. I want to leave you with a quotation about freedom from President Reagan, the second favorite president of my lifetime:

“Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.” 

I think, just maybe, I won't have to spend my sunset years telling my grandchildren that America was once the land of the free and the home of the brave. It still is, and I pray it will always be.

Good luck on the exams, and I hope I will see some of you next Fall in the Con Law Seminar.

Exam Info

The Exam consists of 3 essay questions, one of medium length (1000 words or less answer), one of 750 words or less, and one of 500 words or less. 

Here are the Exam  Instructions:

 

 Final Examination                                          Examination No.________
December 9, 2024
Three (3) Hours

Examplify Mode: Secure    

PLEASE CHECK TO BE SURE
EXAMINATION IS COMPLETE.    THIS EXAMINATION HAS 4 PAGES.

INSTRUCTIONS


1.    You must complete this examination using Examplify in the secure mode. Using the wrong Examplify mode is an Honor Code violation.

2.    If you experience computer problems, you will not be given more time to complete the exam. You should switch to writing in Green Books and work with the exam administration personnel when you have completed your exam. You may contact exam administration personnel to try to resolve the computer problem during the exam, but you will not be given more time to complete the exam.
3.    Write your exam number in the space provided above.
4.    It is an Honor Code violation to write beyond the time limit designated above.
5.    This is a 3 hour closed book/closed network examination. You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

   No cell phones or other electronics, other than the laptop you are taking this exam on, are allowed in this exam room.

6.    This examination will count for 225 points.

7.    Limit the length of your answers as specified in each question. Writing beyond the word limits will adversely affect your score for that question.
8.    You must return the exam questions and all used scratch paper, however nothing written on this exam or on any scratch paper will be graded.
9.    Confidentiality: It is an Honor Code violation to share these exam questions with anyone. It is also an Honor Code violation to retain a copy of this exam in any format (printed, downloaded, scanned, photographed, etc.).

Update on Louisiana Ten Commandments Case

 Press release from Liberty Counsel:

The U.S. Fifth Circuit Court of Appeals issued an order Friday allowing Louisiana to post the Ten Commandments in public school classrooms in accordance with the state’s new law, except in the five school districts where parents have challenged the law. The Appeals Court’s order limits the scope of a lower court ruling that initially blocked Louisiana’s Ten Commandments law statewide as unconstitutional. The state is now free to post the Ten Commandments in its remaining 67 school districts beginning January 1, 2025 as litigation continues.

Louisiana state attorneys had filed an emergency motion with the Fifth Circuit arguing that lower court Judge John deGravelles had overstepped his authority when he ordered all 72 school districts in the state be notified that he had struck down the law instead of just the five districts involved in the lawsuit. The Appeals Court decided 2-1 in a one-sentence order to grant the state’s motion for an “administrative stay” which pauses the judge’s notification requirement and only allows his judgment to affect the five school districts with parents officially challenging the law. The Louisiana school districts currently blocked from posting the Ten Commandments are East Baton Rouge Parish, Livingston Parish, St. Tammany Parish, Orleans Parish, and Vernon Parish. The state is appealing to overturn Judge deGravelles full judgment arguing the law is constitutional.

In June 2024, Louisiana enacted House Bill 71 which requires all K-12 public schools and state-funded universities to display at least an 11-inch by 14-inch poster of the Ten Commandments. The displays must have a four-paragraph “context statement” describing the history of the Ten Commandments and how they “were a prominent part of American public education for almost three centuries.”

However, a multifaith group of nine families, consisting of Jewish, Christian, Unitarian Universalist, and nonreligious parents represented by the ACLU, the Freedom From Religion Foundation, and Americans United for Separation of Church and State, have challenged the law alleging the state is endorsing a specific religion.

Louisiana officials defended the Ten Commandments law as constitutionally valid by arguing that it has a historical and educational purpose. They cite the Decalogue’s “historical role” in developing American law and education, which displayed alongside other historical documents, would be permissible under the First Amendment. Since HB 71 also required public school classrooms to display the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance, the state's legal team argued that the law’s intent is not to endorse a religion but to teach where America’s longstanding moral values in civic life originate.

Louisiana has considerable grounds for its appeal. Recent Supreme Court precedents show that displaying the Ten Commandments is not necessarily a religious endorsement.  In American Legion v. American Humanists Association, the High Court wrote that the Ten Commandments “have historical significance as one of the foundations of our legal system” and represents a “common cultural heritage.” Then, in 2022, the cases of Shurtleff v. City of Boston and Kennedy v. Bremerton School District rejected and overruled the 1971 case of Lemon v. Kurtzman. The High Court replaced the “Lemon Test” by returning to a traditional First Amendment standard where courts must interpret the Establishment Clause by “reference to historical practices and understandings.”

Liberty Counsel’s Founder and Chairman Mat Staver said, “The Ten Commandments is a universally recognized symbol of law and has indelibly shaped the Western Legal Tradition and American government. There are more than 50 displays of the Ten Commandments inside and outside the United States Supreme Court. The Ten Commandments are ubiquitous and their central role in law and government pre-date the U.S. Constitution. With this injunction narrowed to only five school districts, the Ten Commandments will be displayed in nearly all Louisiana public schools.”

Speech by Government Employees: Black Letter Rules

 

In his linked article, Prof. Volokh provides a nice summary of the black letter rules concerning speech by government employees:

 "Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

    the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
    the speech is on a matter of purely private concern, Connick v. Myers (1983), or
    the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs."

Nebraska Lawyers are Courageous: Mariwether v Hartrop

 Mariwether v Hartrop is a case about competing narratives, competing versions of the truth. Is biology a social construct? Can a man become a woman by identifying as a woman? Can a woman become a man by identifying as a man? Or is biology (and faith) real and inform us that gender is fixed at birth regardless of personal choice and identity?

Meriwther believed his version of the truth. Is his version a reasonable understanding of reality? If so, can his government employer compel him to say things he believes are untrue? To borrow from 1984, does he have the right to hold to his belief that 2 plus 2 make 4? Or must he say 2 plus 2 make 5?

If he had been a coward, it would have been so easy to use compelled pronouns and protect his job and his livelihood. But he chose to be a courageous leader, and declined to say something he believed to be untrue.

Here is a way to think about it. If you shared Meriwether's views about biology and gender, what would you do if you were at a meeting of student group leaders, and the person who called the meeting said "Let's start this meeting by introducing ourselves and sharing our pronouns?" Would you set aside what you believe to be true and share your pronouns to appease those who hold the competing narrative about biology and gender? Would you sacrifice what you believe to be true in order to be "nice"? Does being nice require you to appear to embrace a narrative you believe is untrue?

Meriwether v. Hartrop (compelled pronoun case)

                                                         Judge Amul Thapar

 

Professor at state university was disciplined because he refused to use a student's "preferred pronouns." The Sixth Circuit wrote a powerful opinion protecting academic free speech. Here is the court's description of the facts:

At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their “preferred pronoun[s].”  Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.”  What if a professor had moral or religious objections? That didn’t matter: The policy applied “regardless of the professor’s convictions or views on the subject.”

 Here are a few great excerpts from the decision:

1. "THAPAR, Circuit Judge. Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse."

2. "“Universities have historically been fierce guardians of intellectual debate and free speech.”  Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019).  But here, Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment.  The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment.  We disagree:  Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors.  Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed."

3. "A decade later, in a case involving a similar New York law banning “subversive” activities, the Supreme Court affirmed that the Constitution protects “academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).  It characterized academic freedom as “a special concern of the First Amendment” and said that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Id.  After all, the classroom is “peculiarly the ‘marketplace of ideas.’”  Id.  And when the state stifles a professor’s viewpoint on a matter of public import, much more than the professor’s rights are at stake.  Our nation’s future “depends upon leaders trained through wide exposure to [the] robust exchange of ideas”—not through the “authoritative” compulsion of orthodox speech.  Id. (citation omitted); accord Sweezy, 354 U.S. at 249–50 (plurality opinion) (“To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”)."

4. " One final point worth considering:  If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity.  A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”  That cannot be.  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy.  Barnette, 319 U.S. at 642." 

5. "The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.  And a professor’s in-class speech to his students is anything but speech by an ordinary government employee.  Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection):  (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints.  See Lane v. Franks, 573 U.S. 228, 236 (2014); Sweezy, 354 U.S. at 250 (plurality opinion).  Because the First Amendment “must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case,” Healy, 408 U.S. at 180 (alteration in original) (quoting Tinker, 393 U.S. at 506), public universities do not have a license to act as classroom thought police.  They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy.  Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.”  Tinker, 393 U.S. at 511."  

6. "Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into “enclaves of totalitarianism.”  Tinker, 393 U.S. at 511."

  Here is a link to the 6th Circuit's opinion. And here is a link to a short article analyzing the opinion.

 I have not assigned this opinion, but I encourage you to read it at some point during your journey through the halls of academia. There has never been a time in my 42 years of teaching when this opinion was more important and more necessary for the preservation of the university as a free and open marketplace of ideas.

In a recent case decided before the Virginia Supreme Court, a public high school teacher. who was fired because he refused to use a student's preferred pronouns (but instead used the student's preferred first name), won under the free exercise clause of the Virginia Constitution and under the Virginia Religious Freedom Restoration Act. See Vlaming v. West Point School Board. On remand, the case was settled when the school board agreed to pay $575,000 to Vlaming.

Free Speech Coalition v. Paxton (Oyez Preview)

 From Oyez:

Facts of the case

Texas enacted H.B. 1181, a law regulating commercial entities that publish or distribute material on internet websites, including social media platforms, where more than one-third of the content is sexual material harmful to minors. The law requires these entities to implement age verification methods to limit access to adults and display specific health warnings on their landing pages and advertisements. It defines sexual material harmful to minors using a modified version of the Miller test for obscenity.

Shortly after the law was enacted but before it took effect, plaintiffs sued, claiming H.B. 1181 violates their First Amendment rights and, for some plaintiffs, conflicts with Section 230 of the Communications Decency Act. The district court issued a pre-enforcement preliminary injunction, finding that the plaintiffs were likely to succeed on the merits of their claim and suffer irreparable harm. The court ruled that the age-verification requirement and health warnings fail strict scrutiny—that is, that it is not narrowly tailored to achieve a compelling government interest using the least restrictive means to achieve that interest—and that Section 230 preempts H.B. 1181 for certain plaintiffs. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that rational basis review—i.e., rationally related to a legitimate government interest—was the proper standard of review and thus vacated the injunction against the age-verification requirement but affirmed as to the health warnings.

Question

Is a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access subject to “rational basis” review or “strict scrutiny”?

Pornography, obscenity, and the First Amendment

 How should the Constitution be interpreted concerning obscenity and pornography?
    
 Is pornography a social problem or is it just a matter of taste?
    
 Should all forms of expression be protected absolutely, in which case we would rely solely on the market to decide which books and movies are published and which are not?    

Should we temper a strong commitment to freedom of expression with a small area of permissible regulation (i.e. should we allow the worst forms of hard core pornography to be regulated while protecting everything else)?
    
 Or should we allow government a lot of room to protect us against cultural pollution?  Central meaning of First Amendment seems far removed from internet porn. Moreover, almost everyone is concerned about children and the fact that they are a couple of clicks on their phones away from unthinkably evil videos and images.

Also consider Prof. Catherine MacKinnon's law review article on Pornography as Trafficking, 26 Michigan Journal of International Law 993 (2005):

In material reality, pornography is one way women and children are trafficked for sex. To make visual pornography, the bulk of the industry's products, real women and children, and some men, are rented out for use in commercial sex acts. In the resulting materials, these people are then conveyed and sold for a buyer's sexual use. Obscenity laws, the traditional legal approach to the problem, do not care about these realities at all. The morality of what is said and shown remains their focus and concern. The injuries inflicted on real people to make the materials, or because they are used, are irrelevant to what is illegal about obscenity. Accordingly, as the trafficking constituted by the exhibition, distribution,  sale, and purchase of materials that do these harms is ignored.

Can the government regulate pornography?  Is it possible to distinguish between harmful movies and books and movies and books that may deal with sexual themes but which are nevertheless artistically worthwhile? And how can we enforce laws against the ubiquitous existence of internet pornography on the web? As Professor Stone concludes in his article on law and obscenity:

Perhaps ironically, we are where we are today not because citizens intentionally voted to make the most extreme forms of sexual material legal, not because judges intentionally held that the Constitution should protect the most extreme forms of such material, but because technology overwhelmed the capacity of the law to constrain the availability of such material. The challenge for the future is to make the best of it.

Should we shrug our shoulders and try to "make the best of" something so destructive as harmful? Or is there a way to at least protect children and victims of sex trafficking from harm?

Miller v California

 Although the Court had for a number of years held that “obscene” materials are not within the area of constitutionally protected speech or press, it had never managed to come up with a workable definition of obscenity.

 Justice Stewart once wrote a concurring opinion in an obscenity case in which he explained the difficulty of defining obscenity.  He said:
    
    “I have reached the conclusion . . . [that obscenity is] limited to hard-core pornography.  I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it.”  Jacobellis v. Ohio 378 U.S. at 197.
    

If it makes me blush, you can ban it!  That’s the best Justice Stewart could come up with.  Is this test just a wee bit vague?  

 Did the Court do any better in Miller v. California?
    
 Miller comes up with a three-part test for non-protected obscenity (which, says the Court, is "categorically...unprotected by the First Amendment."):
    
        1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.    

What does “prurient interest” mean?
    
        The Court has defined prurience as material appealing to a shameful or lascivious or lustful interest in sex.  It does not include a normal interest in sex.
    
 What does that mean?
    
 In one case, the Court held that an erotic magazine was “prurient” because the “leer of the sensualist” had permeated the manner in which the publication had been distributed.    

The magazine had been mailed from the towns of Intercourse and Blue Ball, Pennsylvania and the publisher boasted of the explicit nature of the publication.  The publisher’s clear intent was to appeal to the prurient interest of potential readers.
    
  Now which community are we looking at – the local community (say in Idaho, Utah or Alabama) or a national standard?
    
        Take a look at the beginning of Roman Numeral III – the Court says that “First Amendment limitations . . . do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’”  
    
 Same test, but different standards (a movie that is not obscene in New York may be obscene in Mississippi).  Really a question addressed to the common sense of the jury.  An average jury pool in New York may have a different sense than an average jury in Mississippi.
    
        O.K.  Part two of the Miller test.
    
        Material is obscene if it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” 
    
        What does that mean?  Again, this standard is supposed to be based upon contemporary community standards as understood by average jurors. 

 “[N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct...”

 So what happens in Jenkins v. Georgia when a Georgia jury applies local community standards and concludes that the movie "Carnal Knowledge" is prurient and patently offensive?
    
        The Supreme Court buys some popcorn and malted milk balls, goes to the movies, and says “as a matter of constitutional law” Carnal Knowledge is not “patently offensive.”
    
        Why not?
    
        It’s not “hard core”? 
    
        What is “hard core”?
    
        Justice Stewart knew it when he saw it and so, apparently, does the Court.
    
        Five thumbs up for Carnal Knowledge – it’s a “must see”!  I mean come on! A young Jack Nicholson and Artie Garfunkel (without Paul Simon)! The Court takes upon itself the task of distinguishing community standards of prurience and offensiveness from mere “community prejudice.”  Nowak at 1137.
    
       Third part of the test:
    

A work is not obscene, even if it is prurient and patently offensive, unless in addition it lacks “serious literary, artistic, political, or scientific value.” (p. 1280) “Taken as a whole.”

 The third part of the test is not judged by local community standards.  Rather, it supposedly is to be decided on an objective basis (i.e. whether a reasonable person would find serious literary, artistic, political, or scientific value in the material, taken as a whole). So, artistic photography--even if hard core-- such as that of Robert Mapplethorpe, is protected because of its serious artistic value.

This is why Professor Stone ends his article with this observation:

Perhaps ironically, we are where we are today not because citizens intentionally voted to make the most extreme forms of sexual material legal, not because judges intentionally held that the Constitution should protect the most extreme forms of such material, but because technology overwhelmed the capacity of the law to constrain the availability of such material. The challenge for the future is to make the best of it.

 

First Amendment Fall 2024: Assignments For November 18, 19 & 20

 --Christian Legal Society v. Martinez (link); Freedom of Speech of Government Employees: Pickering (link);. Connick (link); Garcetti (link); Discussion of 6th Circuit decision in Meriwether v. Hartrop (blog post to be provided)

-- Obscenity and Pornography: Read the cases (Stanley, Smith, Miller, Jenkins) and discussion set forth here (link) ; handout articles from Washington Post (Halverson) and ABA (Stone article)

--Preview:  Free Speech Coalition v. Paxton (Issue: Whether the Supreme Court should stay the U.S. Court of Appeals for the 5th Circuit’s judgment allowing Texas to enforce the age verification requirements of H.B. 1181 on commercial websites that contain sexual content).

Christian Legal Society Decision: Information of Disinformation

 On page one of our linked opinion, Justice Ginsburg says this: "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Is this information? Or disinformation? 

If CLS had prevailed on its free speech/expressive association claims, would those rights belong only to CLS? Or would every other student organization have the exact same rights under the Free Speech Clause as CLS?

Christian Legal Society of Hastings College of Law v. Martinez

I. Facts

1. CLS was refused recognition by UC Hastings under an anti-discrimination policy prohibiting discrimination on the basis of race, gender, religion and sexual orientation. They were banned because their bylaws limited membership and leadership to students who affirmed CLS’s statement of faith which included beliefs about the deity of Jesus and Biblical standards of sexual conduct. Thus, they were banned from campus because their bylaws excluded students on the basis of religion and sexual orientation.

2. However, after the litigation, Hastings announced that its actual  policy for recognized student groups was a so-called "all-comers" policy, one that required all student groups to allow any student to be a member and to seek leadership positions. So at least in theory the Hastings Democratic Student group could not limit membership to democrats, the Minority Law Students could not exclude White Supremacists from membership, and the CLS could not limit membership to Christians who affirmed the CLS's doctrinal statement.

3. I don’t know why they did this, but in litigating this case CLS stipulated that the Hastings policy currently in effect was the "all-comers" policy, which, if properly enforced, applies the same standard for recognition to every student group. There is a selective enforcement issue in the case-but lets hold that for the present and focus on the how the Court analyzed the "accept all comers" policy under the First Amendment.

II. Law

1. Nonpublic Forum Rule: When a state university decides to create what is called a "non-public forum" for student groups to meet on campus, the First Amendment permits the University to impose restrictions on access so long as the restrictions are "reasonable  and viewpoint neutral."  So, for example, only student groups are recognized and permitted access to the University's limited public forum. A non-student group-for example the Lincoln Rotary Club-would not be eligible to meet in the limited public forum. In this case, under the "all comers" policy, access to the limited public forum was for student groups who adopt an all comers membership policy. Moreover, under the "all comers" policy, only student groups that were open to "all-comers" were allowed access. This renders the policy a non-public forum under forum analysis (as in Forbes).

Issue: Is the policy under which CLS was excluded both reasonable and viewpoint neutral?

2. Freedom of Expressive Association [remember the Boy Scouts case]

--From Wooley: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

--In Hurley, Justice Souter compared the idea of speaker autonomy--the right of the speaker to shape her "expression by speaking on one subject while remaining silent on another" (515 U.S. at 574) to that of a composer of a musical score who selects which notes to include and which to exclude.

-in  Dale v. Boy Scouts: "The freedom at issue here has both affirmative and negative aspects. The affirmative aspect is the right of the expressive association to select leaders who will communicate the organizations  beliefs....The negative aspect is the right not to be associated with [leaders whose] ideas and beliefs the organization  does not wish to endorse." 

What is the test concerning whether a law restricts the right to expressive association?

 The issue is whether "forced inclusion" under public accommodation laws of the unwanted member would "affect in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express." (casebook p. 1603)

The First Amendment Right of Expressive Association thus includes the right to exclude any member or leader whose presence in the group ""affects in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express."

Is David Duke or another known-supporter  of the KKK a good spokesperson/leader/representative for the ideas sought to be advanced by the NAACP? If a law were passed forbidding the NAACP from excluding someone like David Duke from a leadership position in the association, would it impair the NAACP's ability to clearly express its message of racial equality and racial tolerance?

Should a GLBT youth organization be free to exclude the Apostle Paul from a leadership position because of his conservative beliefs about the sinfulness of homosexuality?

III. Which Body of Law Applies

1. CLS argued that Hastings' decision to exclude it should be evaluated under both forum rules and freedom of expressive association rules.

2. But the Court held that its "limited-public-forum precedents supply the appropriate framework for assessing" CLS’s First Amendment rights.  

3. If I have two free speech rights that arguably apply to a particular case, may government require me to choose between those two First Amendment rights? In other words, may government tell CLS that if it wishes to be part of a limited public forum for student groups it must forego its right of expressive association and agree to admit atheists and others who don't support its doctrinal beliefs to be members and even leaders of the group? If it must admit non-Christians as members and leaders, is it still the Christian Legal Society?

4. The decision to apply only the nonpublic forum rules was critical, because if the expressive association  test had been applied CLS had a slam dunk case--the "accept all comers" policy facially denies recognized student groups the right to exclude members and leaders who do not share the beliefs the group exists to express!

5. Under the limited [nonpublic] public forum rule, the issue was whether the "all comers" policy was both reasonable and viewpoint-neutral. The majority concludes that it is both.

But is it reasonable to require a group to admit members and leaders with views that are totally at odds with the views the group wishes to express and with those it wishes not to express? Is it reasonable to impose an all comers policy that "affects in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express?"

I'm with Justice Alito's dissent. What do you think?